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Digital Markets and the Paradigm of Competition - 19 Dec 2018

Consultant George Raitt discusses the implications of current competition law investigations in Australia and overseas for the paradigm of markets and competition which competition laws enforce. His forthcoming book, The Metaphysics of Market Power: The Zero-Sum Competition and Market Manipulation Approach examines the concept in more detail.

A Christmas Gift for Small Residential Builders - 19 Dec 2018

Most Security of Payment updates at this time of year are the ubiquitous warning about how your spawn of the devil contractor will ruin your long overdue break with their massive ambush claim, served on Christmas Eve. But this time we have something different – we have good news. On 21 November 2018, both houses of NSW Parliament passed an extended exemption of owner occupied residential construction work from the clutches of the Security of Payment Act.

Partner, Robert Riddell, and lawyer, Brianna Smith, consider the exemption and how it will impact subcontractors on owner occupied projects.

Parties to the adjudication process have long debated the effect of a late adjudication determination being provided by an adjudicator. In Ian Street Developer Pty Ltd v Arrow International Pty Ltd [2018] VSCA 294 (Ian Street), the Supreme Court of Victoria Court of Appeal clarified the judicial position on the time limits that apply to adjudicators and what it means when an adjudicator gives a late determination. Partner Megan Calder and Lawyer Jeremy Chan discuss.

Fast tracking evidence for foreign proceedings - 06 Dec 2018

Obtaining evidence from persons residing in Australia for use in foreign proceedings can be complicated and time consuming. McKenzie Moore, Special Counsel and Natalie Miller, Lawyer, share their experience of using unconventional channels to fast-track the process.

From breach to remediation – what is taking financial firms so long? - 05 Dec 2018

On 25 September, the Australian Securities and Investments Commission (ASIC) released a report on financial services industry compliance with the Corporations Act 2001 (Cth) breach reporting obligation.[1] The report provides licensees with a benchmark for acceptable breach reporting management.

This article will firstly outline the obligation of licensees to report significant breaches, including the current framework for determining significance. The details of the review will then be discussed, including the scope of review and the reasons behind the review. The six key stages of the breach reporting process will then be examined, including ASIC’s findings as to the average length of each stage. This article will then conclude by detailing ASIC’s ideal breach reporting management standards and how ASIC intends to act on the review.

Published for Lexis Nexis Banking and Finance Law Bulletin Vol 34, No.9

AFCA up and running - 03 Dec 2018

Financial adviser registration - 03 Dec 2018

New Directors’ and Officers’ exposure to personal liability under Security of Payment Legislation in NSW - 02 Dec 2018

Last week the Building and Construction Industry Security of Payment Amendment Act 2018 (Amending Act) was passed by both houses of NSW Parliament. The suite of changes cover many aspects of payment behaviour on construction and related procurements in the Premier State. Partner, Robert Riddell and lawyer, Brianna Smith consider the new exposure this presents to Directors and Officers of construction companies.

Grappling with Good Faith - 28 Nov 2018

The recent New South Wales Court of Appeal decision of Goodwin Street Developments Pty Ltd v DSD Buildings Pty Ltd has clarified that the statutory obligation of adjudicators to apply good faith in making their determinations is distinct from a failure to consider the mandatory matters that must be considered by an adjudicator. Good faith is satisfied by an absence of “bad faith” in the decision making process. Gemma Twemlow, Senior Associate and Denise Burloff, Lawyer discuss the decision.

A costly Christmas present – ramifications of the commencement of the new Building Industry Fairness (Security of Payments) Act 2017 - 14 Nov 2018

On 17 December 2018 the new Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIF Act) will come into force which includes amendments to the payment regime provisions contained in the Building and Construction Industry Payments Act 2004 (Qld) (BCIPA). The commencement of the BIF Act during the Christmas period will create a number of challenges for claimants and respondents in relation to the service of documents required under BCIPA and the BIF Act. Ted Williams, Partner and Gemma Twemlow, Senior Associate, discuss those challenges and impacts.

Rubbing salt into the wound of an applicant in unfair dismissal proceedings - 01 Nov 2018

An applicant whose claim was “doomed to fail”, and was pursued by her to inflict as much damage as possible on her former employer, has led to severe consequences when the Fair Work Commission ordered her to pay indemnity costs to her former employer.

A recent Supreme Court of Queensland decision as to what constitutes a ‘’construction company’’ under the QBCC Act brings consequences for construction groups who undertake works under different State entities.

Partner, Ted Williams, and Senior Associate, Gemma Twemlow, review the decision and what it means for construction companies.

Dark clouds loom over common fund orders - 29 Oct 2018

A shadow has been cast over the seemingly well-accepted ability of courts to make common fund orders in third-party funded representative proceedings. The New South Wales Court of Appeal is to determine whether the Supreme Court has the power to make such orders. This determination coincides with a challenge by Westpac in its application for leave to appeal Justice Lee’s decision in Lenthall v Westpac Life Insurance Services Limited [2018] FCA 1422.

Beyond the Hype Cycle: Blockchain explainer - 26 Oct 2018

Piper Alderman’s Blockchain Group has been at the forefront of the blockchain revolution, advising leading Australian and international projects using this exciting new technology to gain greater business efficiencies, forge new business models and disrupt incumbent intermediaries. We regularly present explainers on Blockchain, and in this article we set out a primer and some examples of how Blockchain technology operates, to assist you in understanding some key concepts in the technology.

ACCC v Pfizer – Special Leave Application - 19 Oct 2018

AFCA: Paving the way for complaints in the financial system - 19 Oct 2018

The Australian Financial Complaints Authority (AFCA) is a new external dispute resolution (EDR) scheme that has been formed to deal with complaints from consumers against an AFCA member. AFCA replaces the existing EDR schemes, being the Financial Ombudsman Service (FOS), the Credit and Investments Ombudsman (CIO) and the Superannuation Complaints Tribunal (SCT). Access to AFCA will be free to consumers and it has the following characteristics:

it is a single forum for EDR services;

it allows higher monetary limits on the amounts that may be awarded by AFCA for complaints other than superannuation complaints;

it provides greater accountability to users, including the appointment by the AFCA Board of an independent assessor whose purpose will be to consider whether AFCA provides an appropriate standard of service; and

it is governed by the AFCA Complaint Resolution Scheme Rules (Rules) which are the terms of reference outlining the rules and processes applicable to all complaints submitted to AFCA, to support its dispute resolution functions and legislation relating to superannuation disputes.

Florian Ammer, Partner, Elaine Cheung, Senior Associate and James Poulos, Law Clerk, provide an overview of the new Australian Financial Complaints Authority.

Poor payment practices in the construction industry have faced increasing scrutiny by legislators, culminating in a series of amendments (and proposed amendments) to the security of payment regime.

Partner, Robert Riddell, and lawyer, Brianna Smith, step you through the introduction of retention trusts and the telegraphed statutory trust accounts, explaining how they work and what they mean for you.

Royal Commission Interim Report – What to Expect - 26 Sep 2018

Commissioner Hayne’s Interim Report in the Royal Commission into Misconduct in the Banking Superannuation and Financial Services industries is expected to be provided to the Federal Government by the end of the week.

The small business unfair contract term legisation has been in force for almost 2 years, and the ACCC has been making enforcement of this legislation a priority.

However, ACCC Chairman Rod Sims has recently said that these changes are “deeply flawed”. He said that the law “does not go far enough, and its limitations really tie our hands as a regulator. What we want is unfair contract terms to be made illegal and we want huge penalties to apply.”

Ian Nathaniel, Partner and Conrad Banasik, Associate, take a look at recent ACCC enforcement action and whether the legislation needs to be strengthened.

Following a finding on 19 March 2018 that Heinz had engaged in misleading and deceptive conduct, the Federal Court of Australia last week hit the food giant with a $2.25 million penalty. The decision marks a fresh approach to the regulation of the marketing of food products to address concerns that health benefits not be overstated, especially when targeted at children and their parents or carers, who are the purchasers of the products. It is a reminder for companies that the Australian Competition and Consumer Commission (ACCC) has power to request the imposition of significant penalties, and is not afraid to do so.

Justice Bowskill in Re Narumon Pty Ltd [2018] QSC 185 has provided a very useful judgment regarding whether an attorney can enter into a Binding Death Benefit Nomination (BDBN) on behalf of the principal who provided the power.

The attorneys of Mr Giles (his wife and sister) signed a document entitled “extension of Binding Death Benefit Nomination” in 2016, in which the nomination made by Mr Giles in June 2013 was confirmed and extended for a further three-year period.

Following continuing complaints by consumers in relation to differences between the advertised NBN service speeds and those actually experienced by consumers, the Australian Competition and Consumer Commission (ACCC) continues to monitor the claims made by retail carriage service providers (RSPs) and has now taken action against one RSP.

New South Wales Returns Fire in the Security of Payment Wars - 29 Aug 2018

Over 1½ years since John Murray was appointed by the Commonwealth Department of Employment to undertake a review of the security of payment laws across Australia, the New South Wales Government is pressing ahead, alone, with changes to its east coast model for security of payment.

The proposed changes are set out in a recently released public consultation draft of the Building & Construction Industry Security of Payment Amendment Bill 2018 (Exposure Draft). Some of the changes seem consistent with recommendations in the Murray Report, others not so, or cover ground not the subject of Murray report recommendations.

The recent Full Court decision in Brooks & Anor v Young& Ors [2018] SASCFC 81 provides an insight into the court’s view upon executor’s duties in respect to estate distributions generally, but especially when confronted with claims under IFP legislation.

Bundling Pfizer with Baxter – does the ACCC’s loss to Pfizer cast doubt on their win over Baxter? - 23 Aug 2018

Earlier this year, the Full Court of the Federal Court handed down its decision on the ACCC’s appeal in the Pfizer case. In dismissing the appeal, with the result that the ACCC has lost yet another case alleging misuse of market power, the Full Court may well have cast doubt on the earlier majority decision in Baxter, a ‘bundling’ case in which the ACCC succeeded.

Dr. George Raitt, Consultant, discusses the implications.

The ACCC has since applied for special leave to appeal to the High Court.

Update on Australia’s Notifiable Data Breaches scheme - 23 Aug 2018

In our earlier article ‘Data Breach Response Planning: Getting Down to Business’ we referred to the introduction of a mandatory new Notifiable Data Breaches (NDB) scheme in Australia and outlined some steps organisations could take to prepare. The changes were introduced by the Privacy Amendment (Notifiable Data Breaches) Act 2017 (Cth). The new law requires entities covered by the Privacy Act 1988 (Cth) to notify both the Office of the Australian Information Commissioner (OAIC) and affected individuals of any data breach in respect of personal information they hold where the breach is likely to result in serious harm.

We are now seeing how the mandatory NDB scheme is operating in practice. The OAIC has just released its second quarterly statistical report on notifications under the NDB scheme (NDBReport). You can access their news release and a link to the Report here.

The Fair Work Ombudsman has recently commenced proceedings against food delivery application “Foodora” in the Federal Court of Australia alleging that the “gig-economy” platform has engaged in sham contracting. Emily Haar, Senior Associate, and Professor Andrew Stewart, Consultant, consider the implications such a finding could have.

The recent decision of the Fair Work Commission in Blagojevic v AGL Macquarie Pty Ltd; Mitchell Seears [2018] FWC 2906 has shed further light on what constitutes “reasonable management action” in the context of performance management under section 789FD of the Fair Work Act 2009 (Cth).

Ben Motro, Special Counsel and Emily Setter, Law Clerk, discuss the Fair Work Commission's decision

Whistle-blower protection laws applying to internal (and some external) disclosures are on the cards. The amendments will bring a new and aggressive protection regime into the Corporations Act 2001, replacing the relatively limited scheme that currently exists. Unlike the current scheme, which has not had a significant impact, the new scheme will significantly alter the landscape in favour of claimants arguing that they have been victimised or exposed as a result of having made a legitimate disclosure of misconduct or breaches of the law. The amendments are contained in a bill currently before the Australian parliament and expected to be passed with bipartisan support, the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017.

A full investigation may reveal that to be the case (and therefore liable to be held a void as an attempt to contract out of the Act), but do you really want to be the one put to the expense of demonstrating that, on the balance of probabilities, to the Supreme Court? It is well understood that the security of payment regime is by far the fastest, cheapest and most efficient method for contractors to secure payment of their progress claims. Whether the respondent is disputing the claim, or just tardy in its payment behaviour, the 'pay now argue later' legislation, while technical, is typically an effective express lane to securing payment.

Michael Bacina talks to Jerome Doraisamy in the latest edition of Lawyers Weekly podcast: "Blockchain, cryptocurrency and changing client expectations". Listen to learn more about ways in which blockchain and cryptocurrency innovations are driving change in the legal sector.

Is my claim for the debt statute-barred? - 13 Jun 2018

So you want to run an Initial Coin Offering/Token Sale in Australia… - 12 Jun 2018

There has been increasing interest in initial coin offering/token sale/token generation events (ICO) in Australia this year. Below we set out 5 key areas and recent developments you should be aware of if you are considering running an ICO/token sale.

Security of Payment in Queensland - The changes are on your doorstep... - 24 May 2018

Come 1 July 2018, Queensland will see the repeal of the Building and Construction Industry Payments Act 2004 (Qld) and the Subcontractors' Charges Act 1974 (Qld). Instead, Queensland will operate under a single consolidated piece of security of payment legislation called the Building Industry Fairness (Security of Payment) Act (BIF).

Contracting with small businesses: include unfair terms in your standard form contracts at your peril - 16 May 2018

Partners, Anne Freeman and Tom Griffith, presented at the 2018 Australian Petroleum Production and Exploration (APPEA) Conference on the business to business unfair contracts regime. A summary of the paper is below. If you would like to receive a full copy, please email: publications@piperalderman.com.au.

The judgement arose as a result of a re-hearing on the discrete question of whether the Applicant, who had brought proceedings on the basis that she had been forced to resign within the meaning of section 386(1)(b) of the Fair Work Act 2009 (Cth), was actually dismissed at the initiative of the employer within the meaning of section 386(1)(a) of the Act.

Notice of termination and ordinary and customary turnover of labour - 14 May 2018

In March this year, the Federal Court clarified the requirements for valid notice of termination of employment. The Federal Court also highlighted the limited scope of the “ordinary and customary turnover of labour” exception to the requirement to pay redundancy pay under the Fair Work Act.Ben Motro, Special Counsel, and Emily Setter, Law Clerk, explore the implications of this decision.

In Luke Colwell v Sydney International Container Terminals Pty Limited [2018] FWC 174, the Fair Work Commission found that an employer validly dismissed an employee in circumstances where the employee sent a sexually explicit video privately to 19 work colleagues through the Facebook Messenger app (Messenger).

The decision, if followed, would be a significant expansion of the law as it relates to employers regulating out of work conduct. Tim Capelin, Partner and Amrita Howell,Associate, discuss the implications.

CryptoLaw: The Business of Bitcoin - 04 Apr 2018

1. Introduction

Since Bitcoin was introduced in 2008, it has continued to grow in popularity, public awareness and adoption. As of the time of writing, the market capitalisation of Bitcoin is almost USD$126 billion with an estimated 15 million users. With mixed reports as to the popularity of Bitcoin as a means of payment, the leading online payment gateway, Bitpay, was on track in December 2017 to process US$1 Billion in transactions per year.

Never before has the world seen such widespread and fast adoption of a socially agreed medium of exchange which is not backed by a government.

Countdown to the introduction of the European Union’s General Data Protection Regulation - 12 Mar 2018

Jen Tan, Senior Associate, Liam Higgins, Lawyer and Grace Black, Law Clerk discuss the incoming General Data Protection Regulation, how it may affect Australian businesses, and outline the steps that Australian businesses can take to prepare for these changes now.

Please note: we are authorised to advise on and practice Australian law only and, as such, this article is not legal advice on EU law but is a snapshot of how these incoming changes may be applicable to Australian businesses. We can provide you with more specific advice on how these changes apply to your business by working together with EU associates who are authorised to advise on and practice EU law.

The purpose of the Freedom of Information Act 1985 (Vic) (Act) is to access to information as much as possible. However a recent decision affirms that the exclusions under the Act extend to protecting operational employees’ testimony taken as part of investigations and ensuring future potential witnesses will contribute to internal investigations. John Evans, Lawyer and Tim Lange, Partner discuss the impact of Country Fire Authority v McGregor (Review of Regulation) [2017] VCAT 582 for organisations subject to the freedom of information framework. While “employee records” exemptions exclude many private sector employers, public sector and volunteer workforces are within scope.

In an Australia first, Uber has now had its ride-share app based business tested in the Fair Work Commission. In Kaseris v Raiser Pacific V.O.F [2017] FWC 6610, the Fair Work Commission held that drivers utilising Uber’s ride-share application are not employees within the meaning of the Fair Work Act. Tim Lange, Partner, and John Evans, Lawyer, discuss the Commission’s findings.

Michelle Cox, Associate, and Chris Hartigan, Partner, discuss the decision and its impact on employers engaging in enterprise bargaining. In a recent decision of the full bench, the Fair Work Commission has decided to delete the abandonment of employment clauses in six modern awards, and is now seeking submissions from interested parties in relation to a replacement clause.

It’s now more difficult to be protected: The High Court’s latest ruling on protected industrial action, bargaining-related orders and unlawful coercion - 13 Feb 2018

In Esso Australia Pty Ltd v The Australian Workers’ Union; The Australian Workers’ Union v Esso Australia Pty Ltd [2017] HCA 54, the High Court of Australia was called upon to determine two important questions relating to protected industrial action:

1. whether a union that contravenes a Fair Work Commission (FWC) order with respect to a matter relating to enterprise bargaining is prohibited from taking protected industrial action for the entire bargaining process, even after the relevant order ceases to operate; and

2. when unprotected industrial action can constitute unlawful ‘coercion’ for the purposes of sections 343 and 348 of the Fair Work Act 2009 (Cth) (FW Act).

David Ey, Partner, and Irene Nikoloudakis, Law Graduate, explain the decision and its impact on employers engaging in enterprise bargaining.

Security of Payment : Ready for the BIF to start? - 12 Feb 2018

Since the assent of the Building Industry Fairness (Security of Payments) Act 2017 (BIF) on 10 November 2017, there has been no word from the Queensland Government as to the commencement of the security of payment provisions. Implementation should be expected to start any day now. As the Project Bank Account[i] provisions will be implemented on 1 March 2018, it is reasonable to expect that the security of payment provisions may be proclaimed on 1 March 2018. Principals, contractors, subcontractors and suppliers should ask themselves: Am I ready for the BIF

Following an extensive review process, the Retail and Commercial Leases (Miscellaneous) Amendment Bill 2017 (SA) has passed through the House of Assembly and is presently awaiting consideration in the Legislative Council of the South Australian Parliament.

Data Breach Response Planning: Getting Down to Business - 19 Jan 2018

In the recent articles, Piper Alderman has discussed the needs for organisations to put in place suitable policies and plans in place to address information security risks. The firm’s recent article 'Count down to the introduction of the mandatory data breach notification obligations' provided an overview of the new mandatory data breach notification regime which comes into effect in February 2018. If you are unaware of the new data breach notification regime or whether it applies to your organisation, you should review that article.

In this article, Tim Clark, Partner, and Andrew Barling, Senior Associate, outline some practical aspects for consideration by organisations to assist with data breach response planning under the new regime.

$1B lost: the 5 biggest cryptocurrency fails of 2017 - 05 Jan 2018

2017 was a stellar year for cryptocurrency valuations in general and Bitcoin in particular. On 1 January 2017 the USD$ value of a Bitcoin passed USD$1,000 and one year later on 1 January 2018 the price was USD$13,700.

On 17 December 2017, Bitcoin reached an all time high price of $19,783.

But it hasn’t been plain sailing for the crypto ecosystem with a number of security breaches and exploits in 2017 showing how vulnerable operations can be to malicious actors.

Security of Payment and Factoring. Not so Fast! - 20 Dec 2017

The security of payment regime is by far the fastest, cheapest and most efficient method for contractors to secure payment of their progress claims. Whether the respondent is disputing the claim, or just tardy in its payment behaviour, the pay now argue later approach is a very popular express lane to payment. However this week the NSW Court of Appeal has slowed that traffic, rolling out a virtual tyre shredder for contractors that have factored their debts.

Robert Riddell, Partner and Daniel Fitzpatrick, Special Counsel discuss the decision of the NSW Court of Appeal.

Director penalty notices - 07 Dec 2017

Given the Government’s recent consultations regarding a possible extension of the Director Penalty Regime to make directors personally liable for unremitted GST, and the increasing activity of the ATO in utilising these provisions, now is an appropriate time for all directors to ensure that they (and their advisers) have a clear understanding of when they may become personally liable for the taxation debts of their company, what they need to do to best protect themselves against such liability and what they should do upon receipt of a director penalty notice. Senior Associate, James Nunn provides an easily digestible summary addressing these matters.

The High Court of Australia has recently rejected an application for special leave from the Full Federal Court decision in Australian Building and Construction Commissioner v Powell [2017] FCAFC 89, confirming the blanket requirement for a union official exercising access rights under health and safety legislation to hold a permit.

Megan Calder, Partner, and Alexander Marcou, Lawyer, discuss the decision of the High Court.

Count down to the introduction of the mandatory data breach notification obligations - 05 Dec 2017

Jen Tan, Senior Associate and Liam Higgins, Lawyer discuss the incoming mandatory breach obligations that are soon taking effect, and outline the steps that you can take to prepare for these changes now.

What? You’re Insolvent? That’s fine, just keep working. - 04 Dec 2017

From 1 July 2018, reforms to the Corporations Act 2001 (Cth) (the Act) will become effective including the addition of safe harbour laws and protections against ipso facto clauses.

The introduction of the new provisions in the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth) provides some safeguards to directors who attempt to ‘trade out’ of financial trouble without the threat of being personally liable for insolvent trading arising from debts incurred in attempting to do so or its trading contracts being terminated because an insolvency event has been triggered.

Project Bank Accounts – What Lies Ahead - 01 Dec 2017

The new Building Industry Fairness (Security of Payment) Bill 2017 (Qld) was assented to on 10 November 2017, which will see the introduction of project bank accounts (PBAs) into the Queensland construction industry. As the project bank account provisions will be trialled from 1 January 2018, contractors, at least those involved in State Government projects, should familiarise themselves with the relevant provisions.

One provision to void them all: the shadow life of section 34 - 01 Dec 2017

Factoring of Debtors and Leading with your Chin - 26 Nov 2017

Factoring agreements are very popular with subcontractors and suppliers in the construction industry, assisting cash-flow by providing a line of credit against accounts receivable. However, like any financial product, they can present complexities, pitfalls and at times surprises when pursuing debt recovery and enforcement action.

A New “Fairer” Way In Queensland – Building Industry Fairness (Security Of Payment) Act - 16 Nov 2017

On 10 November 2017, the new Building Industry Fairness (Security of Payment) Bill 2017 (Qld) was assented to by the Parliament. This will see the introduction of Project Bank Accounts[i], and the repealing and replacement of the Building and Construction Industry Payments Act 2004 (Qld) (‘BCIP Act’) and Subcontractors’ Charges Act 1974 (Qld).

Andrew MacGillivray, Senior Associate and Denise Burloff, Law Graduate discuss the key changes to the security of payment regime (previously contained in the BCIP Act) to be contained in Chapter 3 of the BIF Act.

No second bite at cherry for former spouse - Lodin v Lodin overturned on appeal - 16 Nov 2017

Lodin v Lodin [2017] NSWCA 327

We previously reported on a family provision claim by a former spouse, who had a property settlement with the deceased more than 20 years earlier, which resulted in an award of $750,000.00 to her in the NSW Supreme Court on 25 January 2017.

Can an employer sue its former employee for pre-employment misrepresentations? - 13 Nov 2017

In an interesting twist, an employee in the process of suing his former employer has found himself the recipient of a counter claim for alleged misleading and deceptive representations made in applying for his job.

Compulsory FWO interviews: coming to an employer near you - 13 Nov 2017

On 5 September 2017, the Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 (Cth), was passed. The Act was introduced earlier this year in response to the 7/Eleven crisis. Emily Haar, Associate and Irene Nikoloudakis, Law Clerk review the recent reform.

Update on licensing and registration in the labour hire industry – Overview of new Queensland legislation - 13 Nov 2017

Queensland has now become the first Australian State to pass legislation establishing a licensing scheme for labour hire operators. The Queensland legislation will commence on 16 April 2018. The legislation requires all labour hire providers to be licensed and makes it unlawful for a person to enter into an arrangement for the provision of labour hire services with unlicensed providers. This change in legislation will have a significant impact on the labour hire industry in Queensland.

A recent decision of the New South Wales Supreme Court has stopped the administrators of a synagogue from wrongfully terminating a Rabbi and has affirmed that aspects of other systems of law can validly govern employment relationships.

Tim Capelin, partner, and Emily Setter, law clerk, review the decision and its implications for employers.

BUPA didn’t have to consult about 23 redundancies - 13 Nov 2017

Ben Motro, Special Counsel, and Emily Setter, Law Clerk, reflect on the recent decision of Australian Nursing and Midwifery Federation v Bupa Aged Care Australia Pty Ltd [2017] FCA 1246, in which Justice O’Callaghan of the Federal Court held that the consultation clause in an employer’s enterprise agreement did not require consultation over matters found not to result in “major workplace change”.

It has now been one year since the ‘unfair term’ provisions contained in the Australian Consumer Law came into effect. Given that standard form contracts are commonplace in the construction industry, it is important that contractors and suppliers remain aware of their potential effects.

Changes to Victoria’s long service laws are coming - 13 Nov 2017

The Victorian Government has recently announced that it will introduce reforms to Victoria’s long service leave legislation. The changes are aimed at allowing increased flexibility for employees to take their accrued long service leave and introducing increased protections to ensure continuity of service is not disrupted. Chris Hartigan, Principal and John Evans, Lawyer, discuss the proposed changes and the effects they will have on employers in Victoria.

Your superannuation trust deed along with the superannuation laws form the governing rules that self managed super funds (SMSFs) needs to operate by. The introduction of the $1.6 million transfer balance cap (TBC) and new transition to retirement income stream (TRIS) rules are a ‘game changer’ for SMSFs when discussing benefit payments and estate planning. With the new super rules in effect as of 1 July 2017, now is the right time to review if your trust deed needs to be enhanced or amended to deal with the new approaches and strategies you may need to implement.

Protection to finalise administration of estate - 10 Nov 2017

Barr & Anor v Rockman & Anor [2017] VSC 581

The Victorian Supreme Court recently considered an application by the executors of an estate and the trustees of a trust to be at liberty to distribute the assets of the estate and trust without concern for any potential liability which may arise after distribution.

In the recent case of Application by Clauson [2017] NSWSC 1265, judicial advice was sought relating to whether the proceeds of certain insurance policies were liable to be applied in payment of debts of the deceased.

Superannuation death benefits – Review succession plans - 10 Nov 2017

The changes to superannuation announced in the 2016 Federal Budget have been passed by Parliament with the majority of reforms taking effect on 1 July 2017. One significant change relates to the introduction of the transfer balance cap (TBC) and the limit this imposes on the amount of capital that an individual can use to support a pension in retirement phase.

Cyber Security: Be Aware. Be Prepared - 08 Nov 2017

In this article, Jen Tan, Senior Associate, and Liam Higgins, Lawyer, and their team discuss the importance of understanding the cyber security threats that we face every day, and the ways in which protections can be put in place as a deterrent and to minimise the potential impact of cyber attacks

A New Month, A New ‘Non-Conforming Building Products’ Regime - 07 Nov 2017

On 24 August 2017, the Queensland Government passed amendments to the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) which created a new regime to address ‘non-conforming building products’ and amended reporting and investigative requirements regarding work health and safety matters. These changes and accompanying regulation took effect on 1 November 2017.[1]

In this article, Andrew MacGillivray, Senior Associate and Marya Atmeh, Lawyer, provide an overview of the changes now in force.

How To Draft An Enforceable Liquidated Damages Clause - 25 Oct 2017

As liquidated damages clauses are essential to compensate principals to construction contracts, it is important that they are drafted with proper consideration and are ultimately enforceable. Andrew MacGillivray, Senior Associate and Denise Burloff, Law Graduate discuss the application of the ‘penalties doctrine’ to liquidated damages clauses in construction contracts.

Strata Sorrows for Opponents of AirBNB - 04 Oct 2017

The Tribunal responsible for determining strata disputes in NSW recently ruled in favour of an applicant who had challenged a by-law enacted in her strata scheme which had the effect of banning short-term letting in the building. She had been renting out her apartment using AirBNB in particular.

In the decision in Estens v Owners Strata Plan 11825, NSW Civil and Administrative Tribunal (NCAT) found that the Owners Corporation did not have power to make the by-law in question.

The Australian Securities and Investment Commission (ASIC) yesterday issued a press release and guidance for those considering launching an Initial Coin Offering (ICO/Token Sales). Given the ease with which an ICO (also known as a Token Sale) can be launched, and the huge amounts raised to date (USD$2.115 billion this year alone) this guidance has been eagerly awaited from ASIC. Partner, Michael Bacina discusses.

Basic “rules of thumb” when assessing mental capacity - 27 Sep 2017

When solicitors are approached by people wishing to make a new will or amend an existing will, one of the principal considerations is whether or not a person actually has the legal and mental capacity to fully understand their intentions and actions. In this article we consider the basic “rules of thumb” when assessing mental capacity.

Superannuation death benefits and bankruptcy - 27 Sep 2017

Cunningham (Trustee) v Gapes (Bankrupt) [2017] FCA 787

The Federal Court recently considered a summary judgement application by the trustee in bankruptcy regarding whether superannuation death benefits comprising part of the residuary estate of his late mother, to which he was entitled, was property divisible among his creditors. In this article we discuss the decision of the Federal Court.

The ACCC has previously stated that speed and performance claims regarding retail fixed-line broadband plans are one of its Compliance and Enforcement Priorities for 2017. It has now taken another step in this direction.

In response to a high volume of consumer complaints about ‘slow data speeds’ and regulatory uncertainty, on 21 August 2017, the Australian Competition and Consumer Commission (ACCC) published Industry Guidance (Guidance) for Retail Service Providers (RSPs) on advertising speeds for fixed-line broadband services. The Guidance follows extensive consultation with telecommunications network operators, RSPs and consumer representatives, and builds on the six principles for best-practice marketing (presales and after-sales) it published in February 2017.

Andrew Barling, senior associate and Oliva Dalton, law graduate, discuss the Guidance and its implications for RSPs and consumers.

27 October commencement for franchisor liability under “vulnerable worker” workplace laws – What can we learn from franchisor “joint employer” liability in the United States - 20 Sep 2017

As is often the case in franchising, Australia is following the lead of the United States and introducing laws to make franchisors responsible where franchisees have contravened the employment laws. The new test commencing on 27 October 2017 introduces liability for contravention of employment laws where the franchisor knew or reasonably should have known about the franchisee’s conduct, but did not take reasonable steps to prevent it.

Franchisors in the US have had similar responsibilities for over 30 years, albeit in 2015 a more onerous standard has applied.

Due to events in recent years in the US, this issue of joint responsibility was the topic of much debate at the International Franchise Association conference earlier this year.

Circumstances in which a real estate agent may be liable for misrepresentations to a purchaser - 13 Sep 2017

The decision of the Supreme Court of Queensland in Makings Custodian Pty Ltd & Anor v CBRE (C) Pty Ltd & Ors [2017] QSC 80 relates to a dispute concerning the sale of a shopping centre. The decision is relevant to real estate agents, vendors and property managers and provides authoritative commentary as to the limited effectiveness of disclaimers in erasing the effect of the representations which are later found to be incorrect. Senior Associate, Adam Rinaldi discusses.

Factoring and Security of Payment - 04 Sep 2017

Who would have thought that the ubiquitous factoring agreement could become so controversial? Few would dispute that cash-flow is the lifeblood of the construction industry and that factoring is a popular way to maintain it. However, like most financial products, factoring agreements present complexities and at times surprises, one of which was recently before the Supreme Court in the decision of Quickway Constructions Pty Ltd v Electrical Energy Pty Ltd.[1]

Unlocking cryptocurrency token sales - 04 Sep 2017

If it walks like a financial product, looks like a financial product and quacks like a financial product…

Token sales (also known as Initial Coin Offerings) offer a new form of fundraising which involve an exchange of fiat currency (US or Australian dollars for example) for a digital token. The sales are proving immensely popular with high risk investors.

Digital tokens generally fall within the category of either protocol tokens (such as Bitcoin) where the token itself has intrinsic value, asset-backed tokens (such as The DAO tokens) where a token holder is entitled to a real underlying asset, or access tokens (such as Golem) where tokens are used to access a network, often which has not yet been built.

There is a risk of token sales falling under securities law regulations, in addition to potential GST issues under the ‘Netflix tax’, which create uncertainty for businesses looking to harness this new source of potential funding.

Justice O’Callaghan of the Federal Court of Australia delivered his judgment in the case of Australian Competition and Consumer Commission (ACCC) v Medibank Private Limited (Medibank) [2017] FCA 1006 on 30 August 2017. The Court found that Medibank did not engage in misleading or deceptive conduct, nor did it act unconscionably. Partner, Tom Griffith and Lawyer, Nisha Pereira discuss below.

Construction Payment Regimes To Change In Queensland - 28 Aug 2017

The Queensland Government’s introduction of the Building Industry Fairness (Security of Payment) Bill 2017 (Bill) seeks to make significant changes to the mechanisms for payment in the construction industry, through establishing a new Act that incorporates a number of new and old regimes.Andrew MacGillivray, Senior Associate and Denise, Burloff, Law Graduate discuss the key changes

Smart contracts in Australia: just how clever are they? - 16 Aug 2017

Lawyers in practice today live in a world of ongoing disruption. As automation, artificial intelligence and blockchain technology assists in reducing the costs of business transactions and increases the reliability of record keeping, the adoption of smart contracts is an opportunity for lawyers to help their clients improve efficiency and to reduce the scope for disputes, and a challenge for lawyers who do not stay abreast of this area.

Fiscal Watch - Land Tax – Land Banking - 15 Aug 2017

It is not uncommon for developers to acquire tracts of farming land for future residential development. There is an exemption from land tax for land used for primary production.

In a recent case a developer had acquired large tracts of farming land for future residential development. It was common ground that the land was, at all material times, used for the maintenance of cattle for the purpose of selling them or their natural increase or bodily produce.

Alan Jessup, Partner, discusses the decisions of the Chief Commissioner and NSW Court of Appeal.

Fiscal Watch - Stamp Duty – Deceased Estates - 15 Aug 2017

Nominal duty is only payable in respect of a transfer of dutiable property by the legal personal representative of a deceased person to a beneficiary in certain specified circumstances. In addition an acquisition by a person of an interest in a land holder is an exempt acquisition where it is acquired solely as a result of the distribution of a deceased person.

Alan Jessup, Partner, discusses the decision made by the Supreme Court.

If you have a family trust which owns residential land in NSW or proposes to acquire residential land in NSW you may need to amend your trust deed to avoid a land tax surcharge applicable to foreign persons.

In NSW, a foreign person who owns residential land in NSW, must pay a surcharge of 0.75% from the 2017 land tax year onwards.

Alan Jessup, Partner, summarises the actions you must take to avoid a land tax surcharge applicable to foreign persons.

On 5 July 2017, as part of the four-yearly review of modern awards, a Full Bench of the Fair Work Commission handed down its decision on casual and part-time employment. In this decision, the Full Bench pronounced some noteworthy changes – particularly regarding employees’ conversion from casual to permanent employment.

David Ey, Partner and Shauna Roeger, Lawyer, explain the key implications of the decision for employers.

Ignorance is not always bliss: Employer liable for employees’ breach of fiduciary duties to former employer - 03 Aug 2017

A recent decision of the Full Court of the Federal Court of Australia has found Ancient Order of Foresters in Victoria Friendly Society Limited (Foresters) liable for knowingly participating in, and profiting from, a breach by two of its employees of their fiduciary duties to their former employer, Lifeplan Australia Friendly Society Ltd (Lifeplan).

David Ey, Partner and Irene Nikoloudakis, Law Clerk, review this decision, and consider its implications for employers.

Cryptocurrencies are finally getting significant press coverage as their prices rise and create huge gains for early investors. But there are some key security issues that any investor needs to consider before getting into this market.

When a franchisee sells – what franchisors need to look out for - 25 Jul 2017

As a franchisor, there are a number of pitfalls to look out for when a franchisee sells. Some have always been there whilst others have arisen as a result of the introduction of the current Franchising Code of Conduct (Code) at the start of 2015. Andrea Pane, Partner discuss.

The recent decision in Abergeldie Contractors Pty Ltd v Fairfield City Council [2017] NSWCA 113 concerned the identification of the date of practical completion under cl 34.6 of the AS4000 standard form contract but will have application to other forms of contracts as well. The case involved the review of an adjudicator’s decision which was accepted at first instance by the trial judge.

The Court relevantly found that the date of practical completion was the date on which the certificate of practical completion was issued. The Court rejected the respondent’s argument that the date of practical completion was the date specified in the certificate as to when practical completion had been achieved. As such the payment claim was found by the Court to be valid. Megan Calder, Partner and Emer Sheridan, Law Clerk discuss.

You’ll have to say it at the SAET: Expansion of the role of the South Australian Employment Tribunal - 20 Jul 2017

The jurisdiction of the South Australian Employment Tribunal (SAET) has recently been expanded, meaning that a broader range of matters can be heard by the SAET, with consequential changes to the procedural rules for the handling of non-workers’ compensation matters.

Emily Haar, Associate, and Irene Nikoloudakis, Law Clerk, delve into the changes.

Vocational education providers have been on the top of the Australian Competition and Consumer Commission (ACCC) hit list. In the last two months alone, the Federal Court has ruled against three major service providers, Get Qualified Australia Pty Ltd, Acquire Learning and Careers Pty Ltd and Unique International College Pty Ltd. Penalties are yet to be decided in the case of Get Qualified and Unique. Acquire has been ordered to pay penalties of $4.5 million which is the ACCC’s second largest consumer protection penalty.

Thousands of consumers have suffered loss as a result of the misconduct by these major service providers. The ACCC are particularly concerned that unscrupulous door to door marketing practices previously used in the energy sector are now appearing in the education sector. This update, by Partner Tom Griffith and Lawyer Nisha Pereira will focus on the decision of Australian Competition and Consumer Commission v Unique International College [2017] FCA 727.

Answer The Question! This Is Not A Second Bite At The Cherry - 18 Jul 2017

Under Australia’s various security of payment legislation (SOP Act), an adjudicator is permitted to request further written submissions from either party on specific issues or questions of law, to which each party must be given an opportunity to respond.

Adjudicator’s are only permitted to consider written submissions that have been ‘duly made’ by the parties in support of their payment claim or payment schedule, and to consider submissions not ‘duly made’ could lead their decision into reviewable error.

Recent decisions of both the Supreme Court of Queensland and the Supreme Court of South Australia have provided different views upon the question of dependency within de facto or domestic partner relationships. In Queensland this has also been affected by recent legislative changes that will widen the class of potential claimants against the wills and estates of their existing or former domestic partners. This may be contrasted with a recent decision of the Supreme Court of South Australia which took a more restrictive view of dependency. In this edition of Wills Watch we consider those developments.

Will claims – South Australia comments on what is not a close domestic relationship - 13 Jul 2017

M, S & Ors v The Public Trustee & Ors [2017] SASC 71.

The South Australian Supreme Court has considered whether a plaintiff is a domestic partner under the relevant legislation, notwithstanding that the length of the plaintiff’s relationship with the deceased was less than the prescribed period.

A Full Bench of the Federal Court has refused to award a former seafarer substantive damages for loss of income and associated losses after she had received a settlement sum in a separate proceeding in which she agreed she was unfit to continue working in the maritime industry.

John Evans, Lawyer, discusses the decision and the timely reminder for employers to ensure their workplace policies are updated.

Foreign persons (including temporary residents) who invest in Australian water now need to register their interest with the Australian Taxation Office. Senior Associate and Taxation Specialist Will Fennell discusses.

Statutory declarations do matter - 27 Jun 2017

Statutory declarations are often used in the building industry, although the truth of the statements in them is rarely tested. In the recent decision of 470 St Kilda Road Pty Ltd v Robinson [2017] FCA 597, the Federal Court of Australia imposed personal liability on a director for making a false statement in a statutory declaration accompanying a payment claim under the Building and Construction Industry Security of Payment Act. Megan Calder, Partner and Jeremy Chan, Lawyer discuss.

Warning! Wait for your reference date - 27 Jun 2017

The Supreme Court of New South Wales in Regal Consulting Services Pty Ltd v All Seasons Air Pty Ltd [2017] NSWSC 613 recently confirmed that a payment claim will only be valid (under the SOP) if it is submitted on or after the reference date. A provision in a construction contract that ‘deems’ an early payment claim to be submitted on the actual reference date is ineffective for the purpose of the security of payment legislation. Andrew MacGillivray, Senior Associate and Denise Burloff, Law Graduate discuss the case.

The Fair Work Commission awards a 3.3 per cent increase to the national minimum wage and minimum modern award wages - 16 Jun 2017

On 6 June 2017, the Fair Work Commission’s Expert Panel delivered its decision in the Annual Wage Review 2016-17 [2017] FWCFB 3500. The decision directly affects over 2.3 million Australians reliant on minimum rates of pay.

Amendments to the definition of a “PPS Lease” and the effect on current and future hire agreements - 13 Jun 2017

On 20 May 2017, the Personal Property Securities Amendment (PPS Leases) Act 2017 (Cth) was passed into law. This amendment to the Personal Property Securities Act 2009 (Cth) (PPS Act) extends the period of time before a lease or bailment is considered to be a “PPS Lease” from 1 year to 2 years (Amendment). Kara Pennisi, Senior Associate, Andrew MacGillivray, Senior Associate, and Marya Atmeh, Lawyer, discuss this Amendment.

Can the Retail and Commercial Leases Act 1995 (SA) (Act) start to apply to a lease part way through the term when it did not apply to the lease at the start of the term and can the Act cease to apply to a lease part way through the term when it did apply at the start of the term? In particular, how does the increase in the annual rent threshold from $250,000 under the Act to $400,000 which came into force on 4 April 2011 impact on a lease which exceeded the threshold at the time it was entered into, but which is now under the threshold following the 4 April 2011 amendment? Adam Rinaldi, Senior Associate and Tony Britten-Jones, Partner consider the decision of the Supreme Court of South Australia in Diakou Nominees Pty Ltd v Gouger Street Pty Ltd & Ors [2017] SASC 72 and the consequences this decision has in respect of leases which were previously excluded from the operation of the Act.

A call for licensing and registration in the labour hire industry - 07 Jun 2017

The Victorian and Queensland governments have recently announced that they are committed to reforming the labour hire industry in their states. On 25 May 2017 the Queensland government introduced the Labour Hire Licensing Bill 2017 (Qld), which seeks to establish a mandatory licensing scheme for labour hire companies operating in Queensland and create a number of offences relating to this scheme.

Irene Nikoloudakis, Law Clerk, discusses these announcements and the proposed legislative reforms.

Superannuation year end planning for the 2016/17 financial year - 05 Jun 2017

The end of the financial year always seems to crop up faster than it should. Given the impending July 2017 superannuation changes, being on top of your end of financial year planning is as important as it has ever been.
This year it is essential that you consider maximising the existing contribution limits for superannuation before they decrease on 1 July 2017. While maximising contributions should be front of mind it is imperative you don’t forget your other obligations as trustee of your SMSF and ensure that your SMSF stays on track!

Changes for Labour Hire Companies - 01 Jun 2017

In December 2016, the Queensland Government published an issues paper titled ‘Regulation of the Labour Hire Industry 2016’ seeking submissions from stakeholders on a labour hire licensing scheme in Queensland. Andrew MacGillivray, Senior Associate discusses.

Does Germany do it better? - 01 Jun 2017

Visiting academic, Dr Christian Werthmueller, a lecturer at the University of Manheim in Germany, joined Piper Alderman’s employment relations team for a couple of months to learn about the Australian employment relations framework and undertake research into what overseas employers need to know when setting up business in Australia. During his time working with the Australian team, Dr Werthmueller noted a number of differences between German and Australian employment relations systems and summarises his key findings below.

Franchising – Recent Actions by the ACCC - 25 May 2017

Recent action by the ACCC against Domino’s and Ultra Tune signals a clear warning to franchisors that the ACCC is intent on enforcing compliance with the Franchising Code of Conduct (‘Code’). In both cases, the ACCC has emphasised the importance of franchisors providing franchisees with accurate and timely information. Andrea Pane, Partner and Jamin Li, Law Graduate discuss.

To close the gap on “phoenix operators” and property developers that do not remit GST to the ATO following the completion and sale of their property development, the Federal Government has announced that it will implement a measure which will require purchasers to pay GST directly to the ATO. Senior Associate, Adam Rinaldi looks at the issues associated with the implementation of this measure and summarises the potential impact that other measures announced in the Budget will likely have on property related transactions and the property industry.

The Freedom of Information Act 1985 (Vic) (Act) and its interstate and Commonwealth equivalents provide a means to access public sector documents in the name of open and transparent government. However a recent decision affirms that the exclusions under the Act extend to protecting operational employees’ testimony taken as part of investigations and ensuring future potential witnesses will contribute to internal investigations. The impact of Country Fire Authority v McGregor (Review of Regulation) [2017] VCAT 582 will impact organisations subject to the freedom of information framework. While “employee records” exemptions exclude many private sector employers, public sector and volunteer workforces are within scope.Hannah Linossier, Associate and John Evans, Lawyer discuss the important implications of this decision.

To Litigate Or Not To Litigate? That Is The Question - 16 May 2017

In the recent decision of Hooks Enterprises Pty Ltd v Sonnenberg Pty Ltd [2017] QSC 69, the Supreme Court of Queensland held that parties must comply with a dispute resolution provision even where compliance is not expressed to be a condition precedent to litigation. Andrew MacGillivray, Senior Associate and Denise Burloff, Law Graduate discuss.

Ezy as 123? More like section 550! - 14 May 2017

A recent Federal Circuit Court decision in which Judge O'Sullivan held that an accounting business which provided payroll services to an employer, was accessorily liable for the employer's contraventions of the Fair Work Act. The case demonstrates the pitfalls of being wilfully blind to the contraventions of another person. Ben Motro, Senior Associate reviews this decision.

National law firm Piper Alderman has announced the results of its 3rd annual Employment Matters Survey, ‘What’s keeping you awake at night?’ The survey invited over 2,500 HR Managers, General Managers, COOs, CEOs and legal teams across all industry groups nationally to reflect on their experiences in dealing with employment and safety related matters over the 2015/2016 financial year. The survey also asked for their expectations for the 2016/2017 financial year.

The Full Bench of the Fair Work Commission has overturned Deputy President Lawrence’s decision handed down last year in which a flight attendant who stole bottles of alcohol and then lied about it, was awarded the maximum compensation available.

Tim Capelin, Partner, and Amrita Howell, Associate discuss the decision and the key take home points for employers.

Application for an order to stop bullying used to halt disciplinary action - 02 May 2017

A recent order made by the FWC, in Lynette Bayly [2017] FWC 1886, preventing an employer from taking action in relation to an employee’s alleged misconduct until that employee’s application for an order to stop bullying had been determined. Penny Brooke, Senior Associate discusses this decision and considers the ramifications of this case for employers.

The Queensland District Court has this week found that a fine of $90,000 imposed by the Queensland Magistrates Court in Williamson v VH & MG Imports Pty Ltd [2017] QDC 56 was “clearly manifestly inadequate” when compared with fines imposed in other harmonised jurisdictions under the model Workplace Health and Safetylaws. The ruling affirms the importance of national consistency in penalties, with the Queensland District Court accepting that its WHS Act permitted sentencing courts to consider comparable decisions from states and territories subject to the harmonised legislation. This decision sets a precedent which may see more lenient courts increasing penalties to the level set by courts nationally.

Tim Capelin, Partner and Emily Setter, Law Clerk discuss the important implications of this decision.

Could you be personally liable for your involvement in the business decisions of a company? Shadow and De facto Directors explained - 26 Apr 2017

Shadow and De facto Directors are legitimate types of Directors subject to the same duties, responsibilities and therefore, liabilities, as any company Director. Anyone in a position to make, influence, or guide company or board decisions (with some exceptions) is at risk of being found to be a Shadow Director or De Facto Director and could be subject to fiduciary, common law and statutory Director’s duties. Tim Capelin, Partner and Laura Spalding, Lawyer seek to clarify these concepts and provide some guidance in approaching this issue.

Project Bank Accounts: Do They Cheque Out? - 26 Apr 2017

The Queensland Government appears set to introduce project bank accounts (PBAs) on Queensland construction projects, initially on a pilot basis for government projects of a value between $1 million and $10 million but excluding “engineering projects” and residential construction.

Bank Guarantees and Insurance Bonds in Construction Contracts: What’s the difference? Are they as good as cash? - 19 Apr 2017

“Yes, if the judge says so, but it depends upon which judge is allocated to make the decision and on subtleties of language in the underlying contract and whether the judge thinks the beneficiary is acting unfairly.” [1]

This article covers the practical differences between these different forms of security and explores circumstances by which a call on security may be prevented. Ted Williams, Partner and Marya Atmeh, Lawyer discuss.

Reference Date? What reference date? - 12 Apr 2017

In the recent decision of Fairfield City Council v Abergeldie Contractors Pty Ltd [2017] NSWSC 166, the New South Wales Supreme Court considered whether a reference date was available to a claimant under a Construction Contract, entitling it to make a claim and utilise the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act). Andrew MacGillivray, Senior Associate discusses the case.

Reasonable endeavours versus best endeavours - 12 Apr 2017

As we all know, the terms “reasonable endeavours” and “best endeavours” are commonly used terms in construction contacting, and are also used as an alternative to “must” or “shall”, which requires a party’s mandatory compliance. It is also common place for a party to use the terms “to use reasonable or best endeavours” to limit strict compliance with the Contract. In reality, the real difference in the standard imposed by these terms may be surprising to parties whom believe that merely attempting to satisfy the obligation is sufficient. Andrew MacGillivray, Senior Associate and Denise Burloff, Law Graduate discuss.

Access to information in joint ventures: the dangers of being kept in the dark - 06 Apr 2017

Anne Freeman, Partner presented at the 2016 Australian Petroleum Production and Exploration (APPEA) Conference on access to information issues in the context of joint ventures. A summary of the paper is below. If you would like to receive a full copy, please email: publications@piperalderman.com.au.

Litigation Funding 2017 – a global comparative guide - 06 Apr 2017

In December 2016, senior litigation partners Gordon Grieve, Greg Whyte and Simon Morris contributed the Australian chapter of the first edition of Litigation Funding2017, published by Getting the Deal Through. The publication compares the legal and practical issues relating to third-party litigation around the world.

Assigning the right to sue - the new provisions' - 04 Apr 2017

External administrators of companies can now assign any right to sue that is conferred on them by the Corporations Act, for example voidable transaction claims and insolvent trading claims. Previously these were considered rights that could only be utilised by the appointed liquidator and so could not be assigned. Now they can.

Thomas Russell, Partner and Brendan May, Lawyer discuss these new changes and what they mean for insolvency practitioners.

An Unreasonable Refusal To Settle? VWA v O’Brien - 27 Mar 2017

In the matter of the Victorian Workcover Authority v Kevin Edward O’Brien [2017] VSC 68, a question arose as to whether the successful party was entitled to something other than a standard costs order following the rejection by the plaintiff of a Calderbank offer served prior to trial. The decision of the Supreme Court of Victoria offers a timely reminder when considering how to frame or respond to an offer of settlement to resolve the substantive issues in dispute.

In the matter of Rebecca Raskin v Mediterranean Olives Estate Limited & ORS [2017] VSC 94 the Supreme Court of Victoria decided that an expert determination clause was not a submission to arbitration and it will be void for uncertainty where the clause does not provide for essential dispute resolution procedures.

The High Court has clarified the administrative action exclusion under the Commonwealth’s workers’ compensation laws. In Comcare v Martin [2016] HCA 43, the Court unanimously held that the approach to whether an employer or insurer can utilise the exclusion and protect itself from a workers’ compensation claim is to be based on causation. Under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act), it is now clear that the sole question to ask is whether the employee’s injury or aggravation would have occurred had the reasonable administrative action not been undertaken. John Evans, Lawyer, discusses the key take-home points from this decision.

On 23 February 2017, the Fair Work Commission handed down its decision on applications by employer organisations to reduce Sunday and public holiday penalty rates in six modern awards in the hospitality and retail industries. Since then, there have been a lot of misconceptions floating around about the decision. In this article, Emily Haar, Associate, and Professor Andrew Stewart, Consultant, explain its scope and impact.

On 8 February 2017, the Government introduced legislation into the Federal Parliament which proposes changes to the national paid parental leave scheme. This is the Government’s third attempt in recent years to implement changes to the government paid parental leave scheme and the changes proposed are broadly similar to previous iterations, with only a few notable changes. Partner, Erin McCarthy and Law Graduate, Shauna Roeger discuss the changes contained in the Bill.

Native Vegetation Clearing Laws – Where are we at - 15 Mar 2017

Vegetation management requirements around Australia, particularly in respect of native vegetation clearing, are complicated and quite strict. Kara Pennisi, Senior Associate provides an overview of the native vegetation clearing requirements for each Australian State and Territory.

Delivery of a USB is not valid service under SOP - 15 Mar 2017

The New South Wales Supreme Court recently decided that delivery alone of an adjudication application by a USB stick is not valid service under the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act). Andrew MacGillivray, Senior Associate discusses the case and the key lessons.

Sakr punched - 09 Mar 2017

Yesterday, in a unanimous 5-0 decision, the New South Wales Court of Appeal knocked out Justice Brereton’s remuneration decision in Sakr Nominees Pty Ltd [2016] NSWSC 709, the sixth in a series of controversial decisions on insolvency practitioner remuneration.

Despite yesterday’s decision, Justice Brereton’s impact on contemporary attitudes to IP remuneration has been profound. If his aim was to jolt the profession out of complacency and to get liquidators and the courts thinking more critically about what “fair and reasonable” remuneration really entails, he has certainly achieved his goal...

To stay the enforcement of a decision under the SOP regime – One must move quickly - 01 Mar 2017

In the recent decision of Atlas Construction Group Pty Limited v Fitz Jersey Pty Limited [2017] NSWSC 72, the NSW Supreme Court determined that where a respondent to an adjudication decision files for a review of the decision, but fails to formally (or by agreement) stay the enforcement of that decision, the Court is unlikely to interfere. Andrew MacGillivray, Senior Associate discusses the case and lessons learned.

Last week legislation was introduced into Parliament which if passed will see many offshore retailers now liable for GST in Australia. Under the proposed measures, GST will be levied against foreign suppliers who sell low value goods (being goods with a customs value of AUD$1,000 or less) into Australia.

The measures are intended to provide competitive neutrality for domestic retailers who have historically been at a disadvantage against foreign retailers selling equivalent goods online to Australian customers exclusive of GST.

If passed, the new measures will take effect from 1 July 2017. The amendments will coincide with the introduction of GST on inbound intangibles (i.e. the ‘Netflix tax’) also due to commence on 1 July 2017.

Will Fennell, Special Counsel, provides a summary of the proposed measures.

On 15 February 2017, the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 was introduced into Federal Parliament in order to reverse the effect of the recent decision of the Full Federal Court of Australia in McGlade v Native Title Registrar [2017] FCAFC 10 regarding who must be a party to an Indigenous Land Use Agreement (ILUA) under the Native Title Act 1993. The Bill’s introduction followed a moratorium implemented by the National Native Title Tribunal on the registration of ILUAs which may have been affected by the McGlade decision.

The decision and resulting Bill are of particular relevance to the energy and resources sector where ILUAs are routinely made to ensure the grant of tenements and other interests are valid for native title purposes. Ashley Watson, Partner and Kelly Scott, Senior Associate, provide an overview of the decision and the proposed amendments to the Act and discuss their implications for native title agreements.

On 20 October 2016 the Government introduced the Fairer Paid Parental Leave Bill 2016 containing a revised proposal to remove “double dipping” from the federally funded scheme. Erin McCarthy, Partner and co-author of Parental Leave: A User Friendly Guide discusses the major changes contained in the Bill.

Do we need an exemption to only advertise this job to women? VCAT says no - 07 Feb 2017

As the pursuit for more substantive equality in society continues, many employers actively seek to employ people from groups that are disadvantaged in what is sometimes called “positive discrimination”. A question that frequently arises is whether these proposals require a specific exemption for employers from anti-discrimination legislation, or whether such action is already covered by a legislative exception. The Victorian Civil Administrative Tribunal has recently considered this issue in some detail in Re Waite Group (Human Rights) [2016] VCAT 1258. Emily Haar, Associate, sets out the key take-home points from this decision.

For many years, the regulation of surveillance devices in South Australia has been less comprehensive than in other Australian jurisdictions. Recently, the South Australian Parliament took action to bring South Australia in line with other States and Territories by passing the Surveillance Devices Act 2016 (SA) (the 2016 Act) and repealing the Listening and Surveillance Devices Act 1972 (SA) (the 1972 Act). Ahead of the likely commencement of the new legislation in or early 2017, Erin McCarthy, Partner and Shauna Roeger, Law Graduate examine the new Act and its impact on how employers can legally conduct workplace surveillance in South Australia.

Further developments in the implied term of reasonable notice of termination - 07 Feb 2017

Late last year we wrote about the case of Kuczmarski v Ascot Administration P/L [2016] SADC 65 (Kuczmarski), in which the SA District Court held that a term of reasonable notice of termination is not implied into a contract governed by section 117 of Fair Work Act 2009 (Cth) (FW Act). Kuczmarski was appealed to the SA Supreme Court, but it is understood that the parties to that case have resolved their differences and that the appeal will not be proceeding. This means that Judge Clayton’s decision stands. Meanwhile, a recent decision of the Federal Circuit Court - McGowan v Direct Mail and Marketing Pty Ltd [2016] FCCA 2227 (McGowan) – has generated further uncertainty, with Judge McNab declining to follow the Kuczmarski reasoning. David Ey, Partner and Shauna Roeger, Law Graduate explain these decisions and the implications they have for employers.

Winding-up companies in a partnership - guidance for liquidators who are appointed to companies acting in partnership - 20 Dec 2016

A recent Western Australian Supreme Court case considered the insolvency of a partnership comprised of corporate members. When a partnership is formally dissolved, the partnership assets are realised by a court-appointed receiver, who will realise and distribute the assets in accordance with the relevant State partnership legislation. Senior Associate, Stefano Calabretta and Lawyer, Brendan May discuss this scenario further.

Landmark Decision in Competition Law in Australia - 15 Dec 2016

On 14 December 2016 the High Court found in favour of the ACCC in proceedings concerning anti-competitive conduct by Flight Centre between the years 2005 and 2009. Partner, Tom Griffith and Lawyer, Nisha Pereira discuss the judgment and its implications below.

‘Unfair Contracts’ – How will the new law affect your Business? - 27 Oct 2016

The Australian Consumer Law contained within the Competition and Consumer Act 2010 (ACL) and the Australian Securities and Investments Commission Act 2001 (ASIC Act) provide protection to consumers from unfair contract terms in certain business-to-consumer transactions.

The Federal Government has now extended such protection to small businesses in certain business-to-business transactions through the Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015 which amends the ACL and the ASIC Act.

Electronic Signature Enforcement Exposure - 24 Oct 2016

The rise of the internet has been disruptive to many traditions, and the humble paper contract is no exception. Dozens of online services now permit users to upload an image of their signature to digitally sign contracts. However, the warm feeling of complacency and technological superiority that can come with signing contracts with slick graphics and a smooth interface can be misleading, as one company recently learned in the case of Williams v Crocker.

This decision is a reminder to be vigilant and verify any signature on important documents, whether they are signed digitally or physically.

In the matter of Felan’s Fisheries Pty Limited [2016] NSWSC 1351, the Supreme Court of New South Wales decided that a company was not entitled to security for costs, whilst its directors who were sued in their individual capacity were. Partner, Ian Nathaniel, Senior Associate, Ben Hartley, and Law Graduate, John Evans, discuss further.

In the case of Termite Resources NL (in liq) v Meadows [2016] FCA 1171, the Federal Court dismissed an application to strike out a statement of claim for not pleading a cause of action. Partner, Ian Nathaniel, Senior Associate, Ben Hartley, and Law Graduate, John Evans, discuss further.

The Western Australian Commissioner for Consumer Protection issued proceedings against Unleash Solar Pty Ltd (Unleash Solar) and its sole director alleging misleading and deceptive conduct by Unleash Solar (amongst other things) and that the sole director was knowingly concerned in, or a party to the contraventions alleged. The proceedings were not defended by the respondents and the Federal Court ultimately entered judgment in default. The case serves as a reminder of the matters to be taken into account when seeking a default judgment, particularly in circumstances where the orders sought relate to matters of contention, and the use of accessorial liability provisions. Partner, Ian Nathaniel, Senior Associate, Ben Hartley, and Law Graduate, John Evans, discuss further.

Bulk Water Rights - What do they entail? - 07 Sep 2016

20 years ago, water rights was not a topic commonly contemplated as being something people would have taken seriously from a transactional and trading point of view. As water law in Australia is becoming significantly more complicated, it is a necessary evil that people appoint the correct advisors to review documentation and provide advice on water law. Senior Associate, Kara Pennisi provides some insight.

Civil Procedure Act 2010 - 10 Aug 2016

The Civil Procedure Act 2010 (the Act) is fast becoming a powerful rule book governing the conduct of civil proceedings in Victoria. If litigants and their legal advisers do not follow it, then they do so at their peril. We have utilised the Act for the benefit of a publicly listed company, and the Act is becoming an important tool in the conduct of litigation, particularly where parties or their solicitors stray from the conduct stipulated in the Act.

The Supreme Court has made recent rulings on the application of the Civil Procedure Act that are worthy of attention. Partner, Ian Nathaniel and Senior Associate, Ben Hartley, discuss further.

With the recent Federal Election now done and dusted, it is likely the Turnbull Government will push on with legislative change to competition law in Australia. Partner, Ian Nathaniel and Senior Associate, Ben Hartley, discuss and explain the likely implications.

Late payment fees are not penalties as bank’s total loss taken into account - 10 Aug 2016

The High Court has given guidance on penalties in the high profile case of Paciocco & Anor v Australia and New Zealand Banking Group Limited [2016] HCA 28. Partner, Ian Nathaniel and Senior Associate, Ben Hartley, review and discuss.

Changes to the Commercial Court Division of the County Court - 10 Aug 2016

The County Court Commercial Division has increased its ability to deal with matters in a cost effective and efficient manner with the appointment of judicial registrars and updated practice notes. Partner, Ian Nathaniel and Senior Associate, Ben Hartley, discuss further.

Is there still an implied term of reasonable notice on termination? - 25 Jul 2016

It is generally accepted that where a contract of employment has no agreed duration and makes no provision for termination, the common law will imply a term that the contract may be terminated on the giving of ‘reasonable notice’.

Over the last two decades, this position has been supported by a number of higher court decisions. However, a recent decision of the South Australian District Court, Kuczmarski v Ascot Administration P/L [2016] SADC 65 (Kuczmarski), has thrown into doubt the correctness of this view. In this case, Judge Clayton held that the term of reasonable notice on termination was not implied into an employment contract where section 117 of the Fair Work Act 2009 (Cth) (FW Act) applies. Shauna Roeger, Law Clerk, and Professor Andrew Stewart, Legal Consultant, explain this case and its implications for employers.

In Rakic v Johns Lyng Insurance Building Solutions (Victoria) Pty Ltd (Trustee) [2016] FCA 430, the Federal Court awarded an employee compensation of over $300,000 for loss suffered after she was misled by representations made to her by Johns Lyng prior to taking up her role as General Manager. The case should serve as a cautionary tale to other organisations that many kinds of statements made to prospective employees, such as those about future remuneration or the profitability or financial position of the company, must only be made where there is reasonable basis to do so.

Previously, members of Triple S Super have had no discretion to decide how they would like their superannuation funds to be paid upon their death. Until recently, the legislation directed that upon the death of a member, their superannuation death benefit was paid to their spouse and in the event the member died without a spouse, the benefit would only then be paid to the member’s estate.

However, on 16 June 2016, changes to the Southern State Superannuation Regulations were gazetted to enable members of Triple S Super, Flexible Rollover Product investors and Income Stream investors to nominate their Legal Personal Representative as the beneficiary of their superannuation death benefit upon their death. Partners Donna Benge and Rod Jones, and Associate Christina Flourentzou explain the changes.

Supreme Court Confirms Principles for Validity of Copy of Lost Will - 15 Jul 2016

In Queensland, caretaking and letting rights are big business. People pay millions for those rights. Equally, some Bodies Corporate pay millions to their caretaker or letting agent over the lifetime of their engagement. Sadly, not all caretakers are created equal. So what does a Body Corporate do when their caretaker or letting agent just isn’t up to scratch? Does it simply continue to pay them for services that aren’t being properly performed? Or does it look to get rid of them? Unfortunately for Bodies Corporate, the latter of those two options is notoriously difficult. Special Counsel, Mario Esera, discusses why climbing Mt. Everest may be easier than terminating a management rights agreement.

Many Queenslanders are waking up this morning to find their homes destroyed or severely damaged. Dealing with the aftermath of a storm is difficult for everyone affected. It is particularly difficult for Bodies Corporate because they must also deal with upset lot owners, dispossessed tenants, and damage caused to common property. But where exactly does a Body Corporate’s obligations start and end? Dealing with a flooded foyer is one thing, but what happens when the roof of your apartment complex has been blown away? What does a Body Corporate do then? Senior Associate, Mario Esera, outlines three tips for Bodies Corporate dealing with storm damage.

Triple Homicide and the Forfeiture Rule - 08 Jun 2016

Estate of Raul Novosadek [2016] NSWSC 554

In a recent New South Wales case, the Court had to consider whether the “Forfeiture Rule” should be applied where a son was found not guilty of murdering his mother, his step father and his brother due to mental illness.

We discuss the developing themes and approaches to investment structuring which are sympathetic to the varying needs of capital providers and other participants in agribusiness value chains, as well as some of the barriers to capital flowing into the Australian agribusiness sector.

The Tax and Superannuation Laws Amendment (2015) Measures No 6 Bill, assented to on 25 February 2016, introduced a 10% non-final withholding tax on the disposal, by foreign residents, of certain taxable Australian property. The newly introduced measure, set to take effect from 1 July 2016, has far reaching implications. It will affect both vendors and purchasers of certain Australian assets including Australian resident vendors. It is important that affected persons understand the implications of the new requirements and take appropriate steps and introduce suitable measures to minimise exposure and risk and ensure compliance with the law. Partner, Alan Jessup and Senior Associate, Kimberley Levi discuss further.

Is a lawyer immune from a legal suit? The doctrine of ‘Advocate’s Immunity’ - 31 May 2016

A recent decision on ‘Advocate’s Immunity’ provided an opportunity for the High Court to refine the scope and application of the doctrine. Partner, Thomas Russell, and lawyer, Brendan May, review the decision and what it means for litigants and their representatives.

Security of Payment Update: Mediation clause found not to be a ‘method of resolving disputes’ - 27 May 2016

The Court of Appeal has today clarified that a contractual provision mandating attendance at mediation prior to litigation is not a ‘method of resolving disputes’ for the purpose of s10A(3)(d)(ii) of the Building and Construction Industry Security of Payment Act 2002 (Vic) (Act).

There is nothing more annoying than noisy neighbours – particularly within the confines of a community titles scheme. It is understandable, therefore, that most Bodies Corporate include in their by-laws a reference to ‘excessive noise’. But what happens when noise by-laws are not complied with?

In a recent decision, the Body Corporate for 18 Kingsford Street provided a textbook example of what Bodies Corporate should do in these situations. It acquired orders effectively requiring one of their owners to remove newly laid, and extremely noisy, porcelain tiles from their lot. Senior Associate, Mario Esera, looks at this decision and what other Bodies Corporate should do when enforcing by-laws.

Competing Superannuation Claims - 07 Apr 2016

Brine v Carter [2015] SASC 205

Justice Blue of the Supreme Court of South Australia recently considered the fiduciary duties and obligations of an Executor when the benefits of a deceased’s superannuation are being claimed. Partner Donna Benge and Rod Jones explore further.

The costly iPhone Will - 07 Apr 2016

Yu v Yu & Ors [2015] QSC 373

In our December 2013 issue of Wills Watch, we reviewed the Queensland case of Yu. In that case, the Supreme Court found that an electronic document created by Mr Karter Yu on his iPhone shortly prior to him taking his own life was intended by Mr Yu to be his last Will and testament. Partner Donna Benge and Rod Jones discuss below.

After broad international and domestic criticism of its efforts, the Australian Government is now showing an appetite for significant reform in the area of foreign bribery. The recent resignation of ASX Chief Executive Elmer Funke Kupper highlights reputational risks arising from allegations of questionable transactions off-shore. With proposed changes to the law the subject of a discussion paper issued by Justice Minister Keenan last week, those risks look set to escalate. Partner, Ted Williams discusses.

Taxation Bill to encourage innovation and investment in early stage companies released - 18 Mar 2016

On Wednesday 16 March 2016, the Tax Laws Amendment (Tax Incentives for Innovation) Bill 2016 (Bill) was introduced into Parliament. The Bill is part of the Government’s $1.1 billion National Innovation and Science Agenda, containing proposed tax incentives for early stage investors and for venture capital investment.

The Government has consulted widely with investors, industry bodies, universities and the start-up community during the development of the Bill through the Tax Incentives for Early Stage Investors Policy Discussion Paper (see article: Defining criteria for tax incentives for early stage investors). However, notably, there was no public consultation process on exposure draft legislation. The acceleration echoes the intention to implement the measures with effect from 1 July 2016.

The early days of the anti-bullying jurisdiction saw little activity and few substantive decisions. However, there have recently been a number of decisions made by the Fair Work Commission providing guidance on the operation of the anti-bullying jurisdiction, and the types of behaviours the Commission will consider as bullying.

Amongst these decisions is the Commission’s first formal ruling that bullying had occurred. In this article, Tim Lange, Partner, and Katherine Lee, Law Graduate, discuss a number of these recent cases in order to help employers, human resource managers and employees alike to better understand exactly what constitutes “bullying” in the eyes of the Commission and could therefore potentially give rise to an order to stop bullying.

A recurring theme of these alerts is that all Bodies Corporate have a statutory obligation to act reasonably. Usually, identifying what actions are or are not reasonable can sometimes be difficult to discern. However, the starting point should always be complying with the relevant legislation. Unfortunately, in the case described below, it appears as if the Body Corporate for Pulse overlooked this fundamental starting point. As a result, they received one of the most scathing decisions in recent memory. Partner, Warren Jiear and Senior Associate, Mario Esera, look at this decision and what other Bodies Corporate can do to avoid some of the mistakes made in this case.

In response to global concerns regarding the mass exportation of counterfeit goods, the General Administration of Customs of the People’s Republic of China is now proactively seizing goods registered with Customs. Partner, Tim O’Callaghan and Law Graduate, Nisha Pereira discuss this development.

Probably the most expensive Balcony in Queensland – A warning to Bodies Corporate about acting Reasonably - 26 Feb 2016

Albrecht v Ainsworth & Ors [2015] QCA 220 (6 November 2015)

Bodies Corporate have a statutory obligation to act reasonably. But what does that actually mean? The Body Corporate for Viridian Noosa Residences probably thought that meant acting strictly in accordance with all relevant legislation. Unfortunately, a recent decision of the Queensland Court of Appeal has underlined that this may not always be the case, at least when it comes to approving a balcony. Partner, Warren Jiear and Senior Associate, Mario Esera, look at this case and its likely implications for Bodies Corporate and lot owners in the future.

On February 10 2016 the Corporations Amendment (Crowd-Sourced Funding) Bill 2015 passed the House of Representatives. Before the Senate votes upon this Bill, the Senate Economics Legislation Committee was due to report on the Bill on 22 February 2016, and will hold a public hearing today, 23 February 2016.

Once that Bill is passed, the Corporations Amendment (Crowd-Sourced Funding) Regulation 2015 (Cth) will likely be registered. Partner, David Cornwell and Law Clerk, James Lowrey outline the requirements imposed by the proposed Regulations on crowd funding platforms, investors and companies.

Employer’s failure to make “reasonable adjustments” to accommodate employee with disability leaves it liable to pay over $13,000 in damages - 23 Feb 2016

In the recent Victorian case of Butterworth v Independence Australia Services (Human Rights) [2015] VCAT 2056, a not-for-profit disability service provider was ordered to pay more than $13,000 to a former employee who suffered a workplace injury, for failing to provide reasonable adjustments. This case highlights the risks associated with managing injured employees and the importance of employers being across all relevant legislative duties and responsibilities. Ben Motro, Senior Associate, and Shauna Roeger, Law Clerk explain the case and, most importantly, the lessons employers can learn from it.

The Fair Work Commission confirms its anti-bullying jurisdiction does not extend to workers who are not employees - 23 Feb 2016

As part of the Government’s National Innovation Agenda, the Government released a Policy Discussion Paper on proposed tax incentives for early stage investors. This gives some guidance on how the incentives will work.

To encourage early stage investment into innovative Australian companies, the tax incentive will provide investors with the benefit of a non-refundable tax offset and a capital gains tax exemption on investments that meet certain eligibility criteria.

The availability of the tax incentive will depend on various critical qualifying definitions. These definitions are considered in the Policy Discussion Paper. Partner, David Cornwell and Senior Associate, Kimberley Levi discuss the Policy Discussion Paper.

Not every player wins a prize - 09 Feb 2016

In commercial litigation matters, legal costs are said to “follow the event”. Consequently, the losing party will usually have to pay their own legal costs plus the legal costs of the successful party. Ultimately, this forces both parties to give careful consideration to the merits of their case and any potential offers of settlement.

Historically, litigation involving a deceased’s estate has often attracted a different approach when considering the question of who should pay the legal costs. The courts have expressed the view that a deceased’s estate should pay all legal costs of the litigation because the willmaker failed to give proper consideration to their estate planning. These costs can frequently be in excess of the financial award an applicant might achieve in the litigation. The consequence has been that some claims with dubious merit are pursued and sensible offers of settlement are rejected because an applicant takes a view that they essentially have nothing to lose and everything to gain.

Drone Regulation – Australia lags behind US - 22 Dec 2015

On 15 December the US Federal Aviation Administration released an ‘Interim Final Rule’ providing for new registration and marking requirements for hobby and recreational drones. The rule came into effect on 21 December 2015, providing a web-based process for US citizens to register drones heavier than half a pound and less than 55 pounds.

This development in US drone regulations is in comparison to silence from The Civil Aviation Safety Authority, suggesting it was due to develop new drone regulations to go before Parliament by the end of 2016. It appears that deadline is not achieved.

Partner, David Cornwell and Law Clerk, James Lowrey compare the new US regulation and the current Australian position.

Safe harbours for startups and other directors - 16 Dec 2015

On 7 December 2015, the Federal Government released the National Innovation and Science Agenda, delivering a range of new initiatives. Among the key focus areas, the Government highlighted insolvency law as a primary area overdue for reform. Whilst not introducing wholesale reforms to mimic the United States ‘Chapter 11’ framework, the targeted reforms seek to eliminate the stigma associated with business failure. Partner David Cornwell, Special Counsel Dr Malcolm Quirey and Law Clerk James Lowrey explore the promise these measures hold for Australian startups and early stage companies.

Federal Court turns off the tap on drip pricing - 15 Dec 2015

The Federal Court of Australia recently ruled that both Jetstar and Virgin engaged in misleading and deceptive conduct and the making of false or misleading representations in contravention of the Australian Consumer Law, through a practice commonly referred to as “drip pricing”, in relation to some of their airfare promotions and advertisements. Associate, Tania Maystrenko and Law Clerk, David Derbyshire review the decision.

Reckitt Benckiser accepts targeted pain from ACCC - 15 Dec 2015

In our March edition of Competition and Consumer News, we reported on proceedings that had been initiated by the ACCC against Reckitt Benckiser in relation to its marketing of Nurofen targeted pain relief products. Reckitt Benckiser has now admitted various contraventions of the Australian Consumer Law. Partner, Anne Freeman, provides an update.

Time to play fair! Unfair contract terms regime extended to small businesses - 14 Dec 2015

Long gone are the days of “the contract is the contract”. Whilst many of us have always taken a “balanced” and “plain English” approach to drafting contracts, the Government has decided that there is a need to introduce laws to now make sure that businesses take this approach, as Partner Andrea Pane and Lawyer, Thomas Patereskos explain.

‘Free range’ egg claims on the boil - 14 Dec 2015

On 14 September 2015, the Federal Court found RL Adams Pty Ltd (trading as Darling Downs Fresh Eggs) guilty of engaging in misleading conduct and making misleading representations by marketing its products as free range eggs when they were not. Partner, Anne Freeman and Law Clerk, David Derbyshire review the decision, which is one of the latest in a recent string of cases that the ACCC has successfully prosecuted against primary producers in an effort by the regulator to put a stop to the use of false credence claims in the Australian market place.

Signature Innovation and Science Agenda Launched - 07 Dec 2015

The Prime Minister (and a plethora of Ministers) announced the Government’s signature National Innovation and Science Agenda, earlier today. It reverses the earlier deep cuts in Government funding for research and development in the most recent Budget.

The measures announced are far reaching, but we await much of the detail.

The key areas provided for in the new policy are explained below by Partners, David Cornwell, James Lawrence, Tim O’Callaghan and Tim Clark from the firm’s national Corporate and Intellectual Property & Technology Practices.

Failure to Launch - Equity Crowd Funding in Australia - 04 Dec 2015

Yesterday the Government’s long awaited, proposed regulatory framework for equity crowd source funding was introduced into Parliament. The framework has been widely criticised. The draft legislation does not provide a regulatory regime conducive to the development of equity crowd funding market in Australia. It is too unwieldy to open up a source of risk capital for start-up and early stage companies.

Partner, David Cornwell, Associate, Kimberley Levi and Law Clerk, James Lowrey provide a critical overview of proposed regulatory framework.

Don’t tell me the party’s over: the Fair Work Commission considers the physical and temporal limitations to managerial intervention into the office Christmas party - 30 Nov 2015

In the lead up to end-of-year festivities, Emily Haar, Associate, reviews the decision in Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156 where it was found to be unfair to rely upon multiple instances of misconduct occurring after the official end of an office Christmas party in dismissing an employee.

Consistent with its advices on commencement of the major amendments to the Privacy Act 1988 (Cth), the Office of the Australian Information Commissioner has published two important agency resources in recent times worthy of note. These relate to protection of privacy of Tax File Number information and the sending of private information overseas. Partner, Stephen Hughes, discusses.

Top 12 Enterprise Bargaining Tips - 26 Nov 2015

In 1975, the United States Postal Service issued a new stamp evoking the sense of purpose which then underlay enterprise bargaining. Two overlapping circles, one red, one blue, identified a purple aspect of overlap as if that sweet spot is available in every collective bargaining negotiation. At the time, the then-US President Gerald Ford commented “Our people cannot live on islands of self-interest. We must build bridges … One of the longest and sturdiest bridges in this land is collective bargaining ...”.

While Australia is still in the process of finalising a regulatory framework for equity crowdfunding, the United States has moved forward. On 30 October 2015, the Securities and Exchange Commission (SEC) passed rules to implement Title III of the Jobs Act in the United States. Title III was passed by Congress within the JOBS Act in 2012 however it specifically required SEC rules to implement its operation.

Partner, David Cornwell provides a high level overview of the United States’ regulatory position to permitting retail investors to participate in equity crowdfunding.

Can the new Commission anti-bullying jurisdiction be used to wrest back responsibility for workplace conduct from rogue elements intent on influencing workplace behaviour without reference to the employer? The Fair Work Commission has now given strong support to the view that it can.

The Commission has now handed down one of the most anticipated decisions in its anti-bullying jurisdiction this week: Bowker & Ors v DP World & MUA [2015] FWC 7312.

Associate, Hannah Linossier and Law Graduate, Katherine Lee discuss the recent decision and the key issues employers should be aware of when taking steps to prevent and deal with bullying in the workplace.

Til death do us right apart - 09 Nov 2015

Suspicious Minds - 09 Nov 2015

In a recent New South Wales case, two children of the deceased opposed a grant of probate on the basis that they alleged it to have been executed in “suspicious circumstances”. Partner, Rod Jones and Associate, Christina Flourentzou examine.

The Trans-Pacific Partnership: What does it mean for Professionals and Services? - 20 Oct 2015

Negotiations for the Trans-Pacific Partnership (TPP) concluded on 6th October 2015 after the 12 country partners reached agreement on the final draft of the TPP. The 12 country partners – Australia, New Zealand, Vietnam, Singapore, Japan, Malaysia, Brunei Darussalam, Chile, Mexico, Peru, Canada and the US – make up 40% of the world’s economy and the agreement is expected to have a wide impact on trade and cross-border business.

The TPP is still subject to domestic ratification by each of the partners however the TPP’s outcomes are likely to be advantageous beyond the obvious trade sectors such as agriculture and goods exports. Domestic regulations across different countries complicate the ability of professionals to offer their services internationally. The TPP offers a liberalisation of restrictions on cross-border interactions and creates new opportunities which will provide significant openings for Australian sectors to prosper including, significantly, the legal and financial sectors.

Partners, Gordon Grieve and David Cornwell explore some of the likely outcomes of the TPP as well as opportunities the TPP will provide in services.

ACCC v Dateline Imports Pty Ltd: Make sure you have reasonable grounds, even if it is true! - 14 Oct 2015

There is increasing focus on manufacturers to show they have reasonable grounds to make representations to consumers about ingredients in their products. Manufacturers must ensure testing of products support any representations made in respect of those ingredients. If manufacturers do not hold reasonable grounds for making certain representations about ingredients in a product, it could constitute misleading and deceptive conduct. This is the case even where those representations turn out to be true. Senior Associate, Valerie Blacker and Lawyer, Kelly Fraser examine the recent case of ACCC v Dateline Imports Pty Ltd which illustrates the difficulty in making representations about complex chemical products where experts disagree on the existence of harmful ingredients and sophisticated testing methods cannot conclusively rule out the existence of such chemicals.

Flight Centre v ACCC: thought-crimes and legal fiction - 14 Oct 2015

The ACCC’s loss of appeals in two cases against intermediaries for price fixing (Flight Centre and ANZ/Mortgage Refunds) appears to resolve two conflicting first instance decisions of the Federal Court of Australia. The Full Court was highly critical of the ACCC’s economic arguments, going so far as to suggest that markets are not a feature of the real world but are intellectual constructs devised by economists, and that the Court will decide cases based on its own view of commercial reality. Consultant, George Raitt considers what guidance may be drawn from the decisions for commercial arrangements between suppliers of goods and services and intermediaries such as agents and re-sellers.

Earlier this month, Justice Beach in the Federal Court handed down orders for preliminary discovery for L’Oréal Australia Pty Ltd against BrandPoint Pty Ltd. The discovery relates to a prospective claim for misleading or deceptive conduct or false representations. Such conduct or representations were said by L’Oréal to be embodied in an email sent by BrandPoint marketing its PuraSonic “sonic facial cleansing brush”, a direct competitor to L’Oréal’s own Clarisonic range. Partner, James Lawrence and Law Clerk, Robert Guzowski review the decision.

Taxation Issues and Equity Crowdfunding in Australia - 13 Oct 2015

The Government is soon to introduce a regulatory framework to facilitate equity crowdfunding. However, to date, there has been minimal focus on the taxation treatment of equity crowdfunding. It is hoped that the Government will prioritise the tax treatment of equity crowdfunding as part of the “national innovation agenda” however until the Government does so, it is important to be mindful of the Australian Taxation Office’s views on the application of the existing tax laws to equity crowdfunding. Partner, David Cornwell, Associate, Kimberley Levi and Law Clerk, Stephaine Skevington discuss the current taxation implications on equity crowdfunding in Australia.

Blockchain - Emerging Legal Issues - 12 Oct 2015

The buzzword ‘fintech’ is pervasive in the financial and technology sectors. Blockchain is an exciting form of evolving technology that could upset the position of many traditional service providers such as banks and lawyers.

Guide to Doing Business in Australia - 10 Oct 2015

Our experience in providing cross-border legal services to international enterprises means that we understand the issues faced when entering the Australian market. We can advise on the best way to establish new operations in Australia as well as how to ensure businesses prosper.

Management rights are big business in Queensland. There are real estate agents specialising in buying and selling them, solicitors specialising in advising on them, and financiers specialising in lending money to purchase them. One lender is Suncorp-Metway Ltd and, like any financier, they desire security. The Body Corporate and Community Management Act 1997 provides a certain level of security to financiers, but clearly not as much as Suncorp believed, as they discovered recently in a case heard before the Queensland Civil and Administrative Tribunal.

Partner, Warren Jiear and Senior Associate, Mario Esera, look at this case and its likely implications for financiers and Bodies Corporate in the future.

Disputes between Bodies Corporate and their caretakers are not uncommon. Typically they are resolved promptly and inexpensively. Unfortunately, that was not the case for the Body Corporate for The Rocks Resort. Their dispute with their caretaker started in 2010 and continued over several years, culminating in a trial heard over ten days between 19 June 2014 and 30 October 2014. The result? The Body Corporate lost. Why? They used the word “within” when they should have used the words “not less than”.

Partner, Warren Jiear, and Senior Associate, Mario Esera, explain how a typo cost this Body Corporate hundreds of thousands of dollars in legal fees not to mention future costs orders that may yet be made against them.

DIY Electronic Wills - Are we moving to a new normal? - 09 Sep 2015

In our February 2015 edition of Wills Watch, the Supreme Court of South Australia decision in the Estate of Wilden noted that for the first time in the State's history a DVD may be used as a will under Section 12(2) of the Wills Act 1936 (SA).

Two recent decisions of the Supreme Court of New South Wales confirm this apparent trend and the admissibility to probate of informal digitally recorded documents.

Are you aware of the Stamp Duty Changes to Commercial Property in South Australia? - 26 Aug 2015

When South Australian Treasurer Tom Koutsantonis delivered the 2015-2016 Budget it signalled that there would be a significant change to the commercial property sector in South Australia. Real Estate Senior Associate, Samuel Richardson, looks at the implications of the changes.

Partner, Sebastian Greene and Senior Associate, Josh Steele discuss the recent decision in Australian Securities and Investments Commission (ASIC) v Mariner Corp, focussing on the Court’s interpretation of 631(2)(b) of Corporations Act 2001 (Cth) and how this may impact other potential bidders and/ or target entities when considering a proposed bid and the bidder’s funding arrangements.

Professor Andrew Stewart summarises the Productivity Commission’s draft report on the workplace relations framework, which resists calls for radical change but proposes a limited number of reforms to address deficiencies in the Fair Work regime.

Impacts of insolvency on construction projects - 04 Aug 2015

The insolvency of one of the principals, contractors or subcontractors can seriously impact a construction project at all levels of the supply chain. Infrastructure and Projects partner, Ted Williams looks at the issue and some practical thoughts on drafting contracts to help mitigate these risks.

Australian Infrastructure Projects - 04 Aug 2015

Infrastructure projects worth over AUD$50 billion are currently being planned in Australia, representing a major opportunity for participants in the infrastructure and construction industries. Partner, Tania Zordan outlines some of the major projects being run across states and territories.

New South Wales will play a significant role in global infrastructure by hosting the Global Infrastructure Hub (Hub). The arrival of its CEO in Sydney earlier this month will shift the tone of the Hub to a more operational phase moving forward. Sydney is the ideal location, given the NSW government’s current mandate to invest $20b in infrastructure and encouragement of private sector investment and participation. Partner, Tania Zordan discusses the Hub's status below.

The Club incident and community values - 31 Jul 2015

Recently, the Court of Appeal of the Supreme Court of New South Wales has given some firm guidance upon community values and expectations when an estranged adult son made an Inheritance Family Provision claim against his mother’s estate. Rod Jones and Donna Benge discuss the case of Burke v Burke [2015] NSWCA 195.

Changing foreign investment framework in Australia - 29 Jul 2015

Tony Abbott, Prime Minister of Australia, issued a media release on 11 February 2015 which outlined that the Government was in the process of better scrutinising our foreign investment laws and was considering changes to the foreign investment processes in Australia. Since then a number of events have occurred, some changes have become effective and future changes would seem imminent. It is now more important than ever for foreign investors in Australia to be aware of these changes. Senior Associate, Kara Pennisi takes a look.

You should have settled: why Calderbank offers are important - 28 Jul 2015

If you receive a settlement offer during a dispute, be careful to understand what kind of offer it is. If it is a ‘Calderbank offer’, and you reject it, you could be ordered to pay more of the other side’s legal costs if you are not successful. Partner, Florian Ammer, and Associate, Brendan May, review a recent decision of the Supreme Court of New South Wales that serves as a reminder of the importance of Calderbank offers.

Polytrade v Glass Recovery Services - 23 Jul 2015

It is trite law that a statutory demand cannot be issued where there is a genuine dispute as to the alleged debt. A recent matter in the Supreme Court of Victoria, Polytrade Pty Ltd v Glass Recovery Services Pty Ltd [2015] VSC 164, considers, amongst other things, the appropriate orders for costs when statutory demands are withdrawn (here, before proceedings were filed to set it aside). Warren Jiear, Sarah Drinkwater and Tim Logan discuss below.

Company liquidation - debits and credits by the Commissioner of Taxation - 23 Jul 2015

On 17 April 2015, the Supreme Court of New South Wales delivered a decision with important ramifications for liquidators and the Commissioner of Taxation in the application of debits and credits in a company’s running balance taxation account following liquidation. Senior Associate, Stefano Calabretta discusses in the matter of 4 Doonan Street Collinsville Pty Ltd (in liq) [2015] NSWSC 437.

Can an employer also be an employee? - 13 Jul 2015

Professor Andrew Stewart analyses a recent case which highlights the different approaches that judges can take to determining whether a worker is an employee or an independent contactor. He exclusively consults to Piper Alderman’s Employment Relations team.

Accrual of leave during workers compensation absence - 12 Jul 2015

In our January 2015 Employment Matters, the Piper Alderman Employment Relations team considered the decision of the Federal Circuit Court in relation to the accrual of leave and workers compensation. Senior Associate, Ben Motro and Associate, Hannah Linossier, provide an update to that decision.

Employment Matters - 07 Jul 2015

Minimum wage set to increase by 2.5% and changes to the high income threshold

Accrual of leave during workers compensation absence

Failure to plan the communication of a dismissal decision is a plan to fail

You shall not pass: union misconduct and the Commission's refusal to grant a right of entry permit

Fiscal Watch - 01 Jul 2015

In the July 2015 Fiscal Watch, Partner, Alan Jessup and his team look at:

Part IVA (General Anti-Avoidance Rule) and Tax Consolidation

Fly in Fly Out Employees – FBT and the “otherwise deductible” rule

Queensland stamp duty concessions: resource sector farm-in agreements

Accelerated depreciation for primary producers

A modernised tax system for managed investment trusts

“Look-through” CGT treatment to earnout arrangements

Are you compliant with the Privacy amendments? The OAIC provides its assessment one year on - 30 Jun 2015

Tim Clark, Partner, and Philip Chow, Lawyer, outline the current position of the Office of the Australian Information Commissioner a year on from Australia’s privacy reforms, and look ahead at what is next for privacy strategy and compliance for commercial organisations.

Updated Guidance on Continuous Disclosure - 29 Jun 2015

The ASX has released its updated guidance note on Continuous Disclosure, Guidance Note 8, which includes expanded guidance on listed entities’ continuous disclosure obligations in the context of ‘earnings surprises’, recommended procedures to be applied when undertaking investor briefings and the publication of analyst forecasts and consensus estimates. Partner, David Cornwell and Senior Associate, Josh Steele provide an overview of the key changes to the Guidance Note.

Payment of super benefits on death of member - 26 Jun 2015

The Federal Court has dismissed an appeal from the Superannuation Complaints Tribunal (SCT) affirming a trustee’s decision to pay certain benefits to the three adult children of a deceased member of the superannuation fund. Our Wills Watch team, Rod Jones and Donna Benge look at the decision.

Consequences of not “fixing” a price for a “fixed” term energy contract - 23 Jun 2015

In December 2014, Justice White of the Federal Court made a finding that AGL South Australia Pty Ltd made false or misleading representations and engaged in misleading or deceptive conduct in contravention of the Australian Consumer Law (ACL). In late April 2015, his Honour delivered his judgment and made orders on the penalty to be awarded against AGL SA. Associate, Tania Maystrenko reviews the decision.

In April, the ACCC successfully obtained orders, including an injunction, the payment of pecuniary penalties, the publishing of a notice in The Australian newspaper, and the establishment of a compliance program against Actrol Parts Pty Limited (Actrol) in relation to representations made by Actrol when notifying customers of price increases. Partner, Anne Freeman reviews the decision.

China-Australia Free Trade Agreement Signed - 17 Jun 2015

After more than a decade of negotiations, the China-Australia Free Trade Agreement (ChAFTA) was signed in Canberra on Wednesday, 17 June 2015. ChAFTA is expected to have a significant impact on Australian businesses and consumers given China is Australia’s largest trading partner, with almost a quarter of Australia’s total trade. Partners, Esteban Gomez and Ted Williams discuss.

FIFA in DoJ's sights: no holds are barred, and their reach is long - 12 Jun 2015

Drone/UAV Regulations and Operation - Update - 05 Jun 2015

As both commercial and private use of unmanned aerial vehicles (UAVs), or ‘drones’ as they are more commonly referred to, become more prevalent, jurisdictions around the globe have either implemented or are beginning to refine tougher regulatory schemes in order to better manage their operation as well as the safety, privacy and other issues such use creates. Partner, James Lawrence, looks at the key issues and local regulations.

The prompt recovery of levies which are in arrears is an important factor to ensure the smooth and efficient ongoing operation of a body corporate. In the first of two articles, Partner, Warren Jiear and Senior Associate, Katrina Pagey discuss some of the common mistakes made by Bodies Corporate in recovering unpaid levies.

Are you compliant with the Privacy amendments? The OAIC provides its assessment one year on - 03 Jun 2015

Tim Clark, Partner, and Philip Chow, Lawyer, outline the current position of the Office of the Australian Information Commissioner a year on from Australia’s privacy reforms, and look ahead at what is next for privacy strategy and compliance for commercial organisations.

The 2015 Budget and Crowd-Sourced Equity Funding - 26 May 2015

On 12 May 2015 the Federal Government released its budget for the 2015-16 financial year and has included a number of key measures that will benefit small businesses, start-ups and the crowd sourced equity funding (CSEF) space. The Federal Government’s attention on the area is promising, given the imminent introduction of legislation governing CSEF. Partner, David Cornwell and Law Clerk, Stephaine Skevington set out a brief summary of the measures announced in the Budget.

Fewer Protections for Apartment Owners in Queensland: Why a recent decision of the Supreme Court of Victoria paints a grim picture for residential apartments in Queensland suffering from Building Defects - 25 May 2015

Queensland is currently enjoying a surge in the construction of residential apartments. Unfortunately, a recent decision of the Supreme Court of Victoria has underlined again why residential apartments in Queensland benefit from fewer statutory protections than their counterparts in Victoria and New South Wales. Why? It all comes down to the words “detached dwelling”. Partner, Warren Jiear and Senior Associate, Mario Esera explain.

Requesting arbitration in a legal dispute: the importance of what you agreed - 20 May 2015

If you are contemplating Supreme Court proceedings, be careful to understand with, and comply with, the agreed dispute resolution mechanism in your contract. Failing to do so can significantly delay resolution. If you wish to circumvent the dispute resolution procedures, you need clear and express agreement in writing. Partner, Simon Morris and Law Graduate, Brendan May look at a recent case where these issues arose.

Body Corporate Levies: What are they and what happens if you don’t pay? - 14 May 2015

Most people know that if they own a lot within a community titles schemes they are required to pay Body Corporate levies. For many, however, what Body Corporate levies are, what they are used for and what happens if you do not pay them is confusing, if not an outright mystery. Therefore, to help you make sense of it all, Partner, Warren Jiear and Senior Associate, Mario Esera provide their ABC’s of Body Corporate levies.

The Competition Policy Review’s final report delivered in March 2015 recommends that section 46 should be amended to introduce an “effects” test in line with overseas jurisdictions, and abandons the earlier draft recommendation of a new defence for conduct that is in the long-term interests of consumers. The final report acknowledges in an appendix that corresponding provisions in the USA and Europe differ regarding “effects” of unilateral dominant firm conduct. Consultant, George Raitt discusses the differing approaches in the USA and Europe, and whether the recommended changes for Australia bring us closer to the USA or Europe, or further away from both.

A new Food and Grocery Code – will supermarket heavyweights agree to be bound or will they go off their trolley? - 11 May 2015

Forrest not so silly? Predatory pricing after the Competition Policy Review - 11 May 2015

Furore broke out recently when Andrew Forrest suggested that Australian iron ore producers should cut production to address oversupply and falling prices. It was reported that larger Australian producers had flooded the market and that some smaller Australian producers are in financial difficulties due to falling prices. Apart from demonstrating textbook damage control by Fortescue Metals, the episode provides a useful case study to consider how the recommendations of the Competition Policy Review’s final report will change that application of section 46 to predatory pricing (and cartel conduct). Consultant, George Raitt discusses the impact of the proposed “effects test” on predatory pricing.

The new data retention laws – what should you be aware of? - 11 May 2015

The Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth) (otherwise known as the “new data retention laws”) has been passed into law in April 2015. Partner, Tim Clark and Lawyer, Philip Chow, provide a concise summary of the new laws and how they may affect your business.

Power to sign but not to sell? Appointing a receiver correctly. - 11 May 2015

Piper Alderman's Brisbane based Property team has recently acted for a purchaser in a receiver-appointed sale, which has presented some difficulty obtaining registration of a transfer document, due to the terms of the Receiver appointment. Partner, Peter Dwyer and Senior Associate, Mark Askin share their experience to assist mortgagees and receivers who are involved in selling property pursuant to a mortgage to ensure that appointments validly and clearly provide the receiver with a power to sell the property.

Metgasco’s success against NSW Minister for Resources and Energy: ensuring those in power act within power - 28 Apr 2015

Last week’s decision of Justice Button of the NSW Supreme Court, which quashed two decisions made by the Minister’s delegate relating to the suspension of operations by Metgasco under its Petroleum Exploration Licence (PEL), and which may set up a claim by Metgasco for compensation, serves as a lesson to holders of licences to carefully scrutinise actions taken in relation to them by the Minister or his representatives to ensure that rights are not interfered with invalidly.

Its all Burmese to me - 09 Apr 2015

ACCC getting to the root of the problem - hair smoothing therapy not all that it claimed it was - 02 Apr 2015

The Australian Competition and Consumer Commission recently released its priorities for 2015, which included continued scrutiny on truth in advertising and credence claims regarding the advertisement of products that claim to have particular benefits to the health and wellbeing of consumers. Senior Associate Mitchell Coidan reviews a recent action by the ACCC in this area.

You may not be as secure as you think! The issue of migrated security interests under the PPSA - 02 Apr 2015

The Personal Property Securities Act 2009 (Cth) deems certain security interests, which would otherwise be defective, to be valid for a specified period. After this time, these security interests will become invalid unless they are corrected. In this update, Senior Associate, Maria Capati and Lawyer, Ryan Ainscough explain the types of security interests at risk and what secured parties can do to protect their interests.

Update on crowd sourced equity funding - 30 Mar 2015

Following our Background on Crowd Sourced Equity Funding in October 2014, the Financial System Inquiry released their final report on 7 December 2014. The report recommended that the Government ‘graduate fundraising regulation to facilitate crowdfunding for both debt and equity and, over time, other forms of financing.’ Partner, David Cornwell provides an update.

Continuous disclosure and Newcrest Mining - 20 Mar 2015

ASX is reviewing Guidance Note 8 on Continuous Disclosure, prompted by confusion over “earnings surprises” and disclosure obligations. A consultation paper was released on 6 March 2015 and the ASX has called for feedback by 24 April 2015. The ASX is expecting that it will have the updated guidance note in place by 1 July 2015. Partner, David Cornwell and Law Clerk, Stephaine Skevington review the proposed update.

Global Infrastructure Hub - March update - 13 Mar 2015

Since our previous update in January 2015, which can be viewed here, further progress has been made in establishing the Global Infrastructure Hub. The race is on for the Hub to become operational in time to secure deliverables at the Leaders' Summit in Antalya, Turkey on 15-16 November 2015. Partner, Tania Zordan provides an update on the project's progress.

Do I really own my brand? - 06 Mar 2015

Dispute Resolution Senior Associate, Ben Hartley, looks at the recent Supreme Court of Victoria decision of Naumovski & Ors v Ugrinovski & Ors (Naumovski) in which Justice Zammit found that breaches of the overarching obligations set out in the Civil Procedure Act had occurred. This decision shows that the Civil Procedure Act is becoming a powerful rule book governing the conduct of civil proceedings. If litigants do not follow it, then they do so at their peril.

Nothing stays the same - 01 Mar 2015

ACCC v Pfizer – Judgment summary and ramifications - 27 Feb 2015

On 25 February 2015, Justice Flick of the Federal Court of Australia ruled in favour of Pfizer Australia Pty Ltd (Pfizer), dismissing the Australian Competition and Consumer Commission (the ACCC)’s case that Pfizer’s sales and marketing conduct immediately prior to the expiration of its Lipitor patent breached sections 46 and 47 of the Competition and Consumer Act 2010 (the CCA).

Long mooted and important changes directed at foreign investment in Australian farming land will soon be made to Australia's Foreign Investment Policy. In this alert, our Agribusiness team discusses the changes and what they mean for foreign investors in Australia.

The ACCC has just released its Compliance and Enforcement Policy for 2015. The Policy contains priorities and areas of activity which the ACCC will emphasise when undertaking compliance and enforcement. It is clear from past experience that the ACCC 'walks the talk' when it comes to its areas of focus. Partner, Anne Freeman summarises the priorities.

Update on the Sydney Global Infrastructure Hub - 21 Jan 2015

As advised in our recent alert, which can be viewed here, the Group of Twenty (G20) Leaders announced at the end of their two-day summit in Brisbane in November that an integral part of their plan to raise global growth by increasing investment in infrastructure would be the establishment of a Global Infrastructure Hub in Sydney. Partner, Tania Zordan provides an update on the project's progress.

Resurrecting Employee Share Schemes - 19 Jan 2015

Partner, Judy Choate discusses the evolution of Employee Share Schemes and considers how the forecast changes to the tax treatment of these Schemes will affect public and private companies. This article has been accepted for publication in the April edition of the respected industry journal, The Tax Specialist. A link to this will be provided in due course.

Wills Watch Alert - Statutory Wills - Incapacity - 14 Jan 2015

On 17 December 2014 the Supreme Court of Queensland delivered a further decision pursuant to the Succession Act 1981 (Qld) making a statutory will for a 12 year old minor, “SKC” upon the application of her mother “RKC” (RKC v JNS [2014] QSC). Special Counsels, Rod Jones and Donne Benge, discuss.

The current Franchising Code of Conduct will be repealed and replaced with a new Franchising Code of Conduct, which will take effect from 1 January 2015. The changes will have a significant impact on the franchise industry. Partner, Tania Zordan provides an overview of the changes.

Sydney to become Global Infrastructure Hub - 01 Dec 2014

Ambitious infrastructure projects are a key area of focus for business in Australia. This was boosted by the G20 Leaders' endorsement, on 16 November 2014, of the establishment of a global infrastructure hub in Sydney, making Sydney central to global infrastructure projects. Partner, Tania Zordan reports on the establishment of the new hub.

On 5 November 2014, the High Court issued its decision concerning the power of the Responsible Entity of a Managed Investment Scheme to distribute actual Scheme Property other than cash to Scheme Members. Special Counsel, Lisa Gallate reviews the decision.

China outbound investment regulations and requirements - 13 Nov 2014

China's overseas investment has rapidly increased over the last few years as Chinese companies expanded into new markets, seeking to develop advanced technology and acquiring energy and resources and brand names. Investment into the agribusiness sector from China is no exception as international investment focus turns to food security and food safety. Piper Alderman has acted on acquisition and joint venture investment transactions for both Chinese and domestic clients, most recently for Qingdao Gather Great Ocean Algae Industry Group Co., Ltd from Shandong Province on its acquisition of Australian Kelp products, and Peloris Global Sourcing on its collaboration with Chinese authorities and industry body Dairy Connect in developing and implementing a streamlined cold chain solution for Australian fresh milk imports to China. Potential Australian joint venture partners and vendors should be aware of the regulation which applies in China to capital coming out of that country because it can affect deal timeframes and deal logistics. Lawyer, Shao Ma gives an overview of the regulations around Chinese investment.

On 13 November 2014, the Baird Government announced a new regime for the regulation of Coal Seam Gas exploration in New South Wales. The new NSW ‘Gas Plan’ will be introduced into Parliament later this month. It will reset the areas available for Coal Seam Gas exploration in New South Wales and provide for a detailed compensation regime for farmers and other community groups adversely affected by Coal Seam Gas operations. Lawyer, Bahar Agar and Law Clerk, Christopher Davies provide an overview of the proposed regime.

Exporting food to the USA - upcoming regulatory changes - 12 Nov 2014

Partner, Simon Venus, and Law Graduate, Dina Shehata address future issues faced by Australian exporters of food into the United States, particularly in light of the proposed amendments to US importation laws. These changing provisions will be particularly relevant for small to medium-sized exporters.

Tax reform on the horizon for Australian primary producers - 31 Oct 2014

Last week the Government released its ”Agricultural Competitiveness green paper“, which has been produced following receipt of almost 700 submissions from stakeholders in the agricultural sector. Taxation specialist Will Fennell summarises the tax measures proposed in the Government’s green paper.

Primary producers - what are the tax concessions? - 28 Oct 2014

While according to the OECD report "Agricultural Policy Monitoring and Evaluation 2013" Australian farmers are some of the least subsidised in the world, there are nonetheless a range of tax concessions available in Australia to primary producers. Here, Taxation Specialist Will Fennell summarises those concessions.

Recently, Courts have increased focus on the appropriateness of expenditure (including legal fees) incurred by insolvency practitioners and the steps they should undertake to determine if the costs and expenses are reasonable. Warren Jiear, Partner and Tim Logan, Associate look at a case handed down on 22 October 2014 that considered these issues and the implications for practitioners.

ESOP Tax changes announced - 14 Oct 2014

On 14 October, the Federal Government announced the changes it foreshadowed to the tax treatment of Employee Share and Option Plans (ESOPs). The changes are significant for any company, whether public or private, which would benefit from issuing equity (or options to acquire equity) to employees or directors at a discount to market value as a means of remuneration, incentivisation, retention or raising capital.

The Queensland Civil and Administrative Tribunal is ordinarily a “no cost” jurisdiction – meaning that parties to a dispute ordinarily bear their own costs regardless of the outcome. Costs may be awarded, but this happens rarely and only when the Tribunal is satisfied that the interests of justice require such an order. On 11 September 2014, the Tribunal ordered the Body Corporate for the Surfers Beachcomber to pay costs arising out of a management rights dispute. Partner, Warren Jiear and Senior Associate, Mario Esera, look at this case and its likely implications for Bodies Corporate engaged in similar disputes in the future.

Background on Crowd Sourced Equity Funding - 02 Oct 2014

Crowd Sourced Equity Funding is a relatively recent method of company financing. It refers to arrangements through which a business (the issuer) seeks to raise capital, particularly early-stage funding, by offering small debt or equity interests in the issuer to large numbers of investors (typically retail), sourced through a crowd funding online platform which serves as an intermediary between the issuer and the investors/internet users. Partner, David Cornwell, Lawyer, Bahar Agar and Law Clerk, Chris Davies, discuss the background and current status of Crowd Sourced Equity Funding.

The decision in Western Freight Management Pty Ltd v Roads and Maritime Services, New South Wales [2014] NSWCA 132 was handed down earlier this year and provides guidance on the difficulty of relying on the “reasonable steps defence” under the Heavy Vehicle National Law.

The case was heard in the NSW Court of Appeal following an initial hearing in the Magistrate’s Court and a subsequent appeal in the NSW Supreme Court. Both earlier decisions found that Western Freight Management Pty Limited was guilty of a contravention of a mass requirement. Senior Associate, Maria Capati and Lawyer, Ryan Ainscough review the decision and discuss the implications for drivers and operators.

A recent decision of the Victorian Court of Appeal in Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd [2014] VSCA 165 has clarified that the limitation period for building actions is 10 years from the issue of the occupancy permit or certificate of final inspection regardless of whether the action is brough in contract or tort. Partner, Megan Calder and Associate, Pei Yau, discuss the implications of this decision.

The Importance of DIRRIs has been highlighted - 22 Jul 2014

In February 2014, we published an Insolvency Update discussing the matter of Re Walton Constructions Pty Ltd (in liq); ASIC v Franklin [2014] FCA 68, in relation to an unsuccessful application by ASIC to remove the liquidators of the relevant companies for a perceived lack of independence and impartiality (also seeking further declarations that the DIRRI they completed was deficient). Partner Warren Jiear and Associate, Tim Logan look at ASIC's appeal against this decision.

As of 1 July 2014, the provisions of the Advance Care Directives Act 2013 (SA) (ACD Act) come into operation.

The ACD Act greatly impacts how an individual's medical, health care and lifestyle decisions can be made if they are unable to make those decisions by establishing one document now called an Advance Care Directive (ACD).

Insolvency Newsflash - 09 May 2014

In February 2014 we published an Insolvency Update discussing the matter of Re Walton Constructions Pty Ltd (in liq); ASIC v Franklin [2014] FCA 68, in relation to an unsuccessful application by ASIC to remove the liquidators of the relevant companies for a perceived lack of independence and impartiality (also seeking further declarations that the DIRRI they completed was deficient).

Protection of vendors rights on re-sale - 22 Apr 2014

The Supreme Court of South Australia's decision in the recent case of Murphy v Mitanovski may be relevant to brokers in any case where instructions are taken from a vendor to sell a hotel in circumstances where settlement pursuant to a previous sale contract did not proceed due to a failure by the previous purchaser. The principles apply whether the previous sale contract was dealt with by the current broker or by another agent. Unfortunately, the case is particularly relevant in the current economic climate.

Insolvency Update - It is all about timing - 07 Apr 2014

In the recent matter of JP Morgan Chase Bank, National Association v Fletcher; Grant Samuel Corporate Finance Pty Ltd v Fletcher [2014] NSWCA 31, the NSW Court of Appeal handed down a decision with important consequences for liquidators and the time they have to commence proceedings for voidable transactions. The decision also illustrates the frequently inconsistent operation of the Corporations Act 2001 (Cth) and Court procedure rules. Senior Associate, Elisabeth Pickthall and Associate, Stefano Calabretta discuss the decision.

The recent case of Clout v Andi-Co Australia Pty Ltd [2013] QSC 278 concerned a liquidators’ application for an extension of the period within which to bring a number of voidable transaction proceedings. In the case the court had to consider whether the lack of funding in a liquidation was an adequate reason to explain the delay in investigating and instituting proposed proceedings or rather whether the liquidator had not been diligent enough in his duties. Senior Associate, James Nunn, discussed the case in an article published in ARITA Journal Jan-Mar 2014 - below is an abridged version of his article.

Resources Update - APPEA Edition - 04 Apr 2014

Welcome to the special APPEA edition of Resources Update, Piper Alderman's publication designed to keep you up to date with legal developments that affect members of the Energy and Resources sector in Australia.

On 19 March 2014, the Personal Property Securities Amendment (Deregulation Measures) Bill 2014 was introduced to the Federal Parliament to amend provisions of the Personal Property Securities Act 2010 (Cth) with a view to reducing the costs of complying with the PPSA for small and medium vehicle and equipment hiring businesses. Senior Associate, Nathan Brunt, discusses this development.

The ACCC has recently released its Compliance and Enforcement Policy for 2014. The Policy contains priorities and areas of activity which the ACCC will emphasise when undertaking compliance and enforcement. Whilst some of these priorities are continuing from 2013, there are some new areas that the ACCC will be examining. Senior Associate, Bill Fragos considers the ACCC's priorities for 2014, and the impact on business.

Introduction of the Farm Household Allowance - 12 Mar 2014

Yesterday two new bills (the Farm Household Support Bill 2014 and Farm Household Support (Consequential and Transitional Provisions) Bill 2014) were introduced into the House of Reps to implement the Farm Household Allowance, an income support payment for farmers and their partners in financial hardship. The allowance will replace the existing Exceptional Circumstances Relief Payment, which was only available to farmers in regions experiencing exceptional circumstances, such as drought. The new allowance will be available without a drought or Exceptional Circumstances declaration. Taxation Specialist Will Fennell discusses the new bills.

How changes to the Privacy Act 1988 affect you - 10 Mar 2014

The Privacy Amendment (Enhancing Privacy Protection) Act 2012 has brought about important changes to the Privacy Act 1988. Partner, Florian Ammer and Partner, Tom Griffith discuss the changes that came into effect on 12 March 2014.

Holding back the tide: ACCC’s MacGen determination - 07 Mar 2014

The ACCC has announced it will oppose AGL’s proposed acquisition of MacGen’s electricity generation assets due to perceived likely anti-competitive effects in the NSW retail electricity market. The final determination is not yet available, however, the decision follows the line of argument raised in the ACCC’s issues paper released on 6 February 2014. Partner, George Raitt discusses the issues raised.

Changes to FMD scheme ahead - 05 Mar 2014

The “farm management deposits” (or FMD) scheme is a form of income equalisation which allows an individual carrying on a primary production business (including a primary production business carried on as a partner in partnership or as beneficiary of a trust) to carry over income from years of good cash flow and to draw down on that income on years when the cash is needed. Taxation specialist Will Fennell looks at the proposed changes.

Insolvency Update - Referral relationships with Liquidator: when is this a conflict? - 28 Feb 2014

It is common for liquidators (and all of us working in the insolvency industry) to work with a few firms or individuals and for referrals to predominately be distributed amongst those. In the recent decision in Re Walton Construction Pty Ltd (In Liq); ASIC V Franklin [2014] FCA 68, the Federal Court considered when that relationship might amount to a conflict. Associate, Sarah Drinkwater and Lawyer, Tim Logan discuss the Court's decision.

A recent decision by the Court of Appeal in the Victorian Supreme Court indicates that the courts are increasingly prepared to take steps on their own motion to investigate and deal with breaches of the Civil Procedure Act 2010 (Vic). Senior Associate, Nathan Brunt, discusses the decision.

Resources Update - 21 Feb 2014

Welcome to the February 2014 edition of Resources Update, Piper Alderman's publication designed to keep you up to date with legal developments that affect members of the energy and resources sector in Australia.

Competition and Consumer News - 17 Feb 2014

In this month's edition:

ACCC scrutiny of guarantees is guaranteed - The ACCC's tough stance on misrepresentations to consumers regarding their consumer guarantee rights shows no signs of abating. Partner, Anne Freeman looks at the latest news in this area.

Unilever hangs Colgate and Cussons out to dry - Recently the ACCC has commenced proceedings in the Federal Court against PZ Cussons Australia Pty Ltd and Colgate Palmolive Pty Ltd, alleging that they made and gave effect to a cartel, and engaged in anti-competitive conduct relating to their ultra-concentrate products. Senior Associate, Bill Fragos discusses the proceedings.

Penalty judgement entered after ACCC takes action on fake testimonials - Partner, Tom Griffith, discusses a recent judgement of the Federal Court in proceedings involving fake testimonials and false and misleading comments about the country of origin of the solar panels supplied by "Euro Solar" and "Australian Solar Panel".

The first Road Safety Remuneration Order has been handed down on 17 December 2013. The order was made under the Road Safety and Remuneration Act 2012 which commenced on 1 July 2012 with the stated objective of promoting safety and fairness in the Road Transport Industry. Senior Associate, Maria Capati and Lawyer, Ryan Ainscough, discuss the Order.

The temporary perfection period for transitional security interests is ending at midnight on 31 January 2014. Secured parties must immediately ensure their transitional security interests are perfected by registration on the Personal Property Securities Register in order to ensure their interests are protected.

With the continuing growth in companies trading in an online environment, it is increasingly common for liquidators to deal with creditors in numerous countries around the world. It is also becoming more and more common for liquidators to deal with creditors who have only ever traded with a company in an online manner. Piper Alderman's Brisbane Insolvency Team headed by Warren Jiear, teamed up with Blair Pleash of Hall Chadwick recently and appeared in the Supreme Court of Queensland seeking the Court's directions regarding the convening and conducting of an online meeting of creditors in circumstances where creditors are located in at least 35 different countries.

On 20 November 2013, the District Court at Brisbane made an order terminating the Body Corporate for Nobbys Outlook CTS 14822 pursuant to section 78(2) of the Body Corporate and Community Management Act 1997. The Termination Order is unique, such an order never having been made before in Queensland or in any other state under like legislation. Partner, Warren Jiear and Senior Associate, Mario Esera, acted for the Body Corporate; here, they look at the case and its likely implications.

Insolvency Update - 05 Dec 2013

Partner, Warren Jiear, along with Associate, Sarah Drinkwater and Lawyer, Timothy Logan, look at three cases relating to the setting aside of personal insolvency agreements and terminating/setting aside resolutions for Deeds of Company Arrangements and the issues which a court will consider when deciding whether such a step should occur. Piper Alderman's Credit Management and Insolvency teams acted in two of these proceedings.

On 9 December 2013, Agriculture Minister Barnaby Joyce announced the terms of reference of the Agriculture Competitiveness White Paper, stating that the purpose of the paper would be to generate jobs, increase farm gate returns, investment and economic growth in one of Australia's key export industries.

Resources Update - Special Edition - 15 Nov 2013

Welcome to Piper Alderman's Resources Update, our publication designed to keep members of the Energy and Resources sector up to date with legal developments that may affect them.

In this special edition, we present the paper that Alan Jessup, Partner in our Tax group, recently presented at the 37th national AMPLA Conference entitled 'Application of stamp duty to mineral and petroleum transactions'.

What is the current status of FIRB thresholds for purchases of agricultural land? - 01 Nov 2013

In light of ongoing publicity about foreign acquisitions of Australian agricultural land, Partner, Simon Venus and Law Graduate, Liberty Privopoulos look at the current status of the FIRB reporting requirements.

A recent decision of the Fair Work Commission has approved an enterprise agreement despite containing a clause that potentially breached state legislation because it allowed GPS tracking of employees and equipment. Senior Associate, Benjamin Motro and Lawyer, Ryan Ainscough discuss.

Transport Update - The South Australian Government seeks to remove indemnity loophole - 11 Oct 2013

In August, the Corporate Transport team reported on the decision of Hillman v Ferro Con (SA) Pty Ltd (in liquidation) and Anor [2013] SAIRC 22 which criticised the use of insurance policies allowing directors to avoid personally paying fines for workplace health and safety law breaches (see Piper Alderman Transport Update, August 2013). In this update, we review the government's response to the decision and the likely changes to be made.

Transport Update - WH&S law throws doubt on indemnity - 06 Aug 2013

A recent decision in South Australia has created uncertainty as to whether insurance policies that indemnify directors to allow the avoidance of personally paying fines for workplace health and safety law breaches will be effective under the new WHS law. Maria Capati, Senior Associate and Ryan Ainscough, Lawyer discuss.

Trade & Transport Alert - 30 Jul 2013

The recent Australian Federal Court decision of Yu v STX Pan Ocean Co Ltd (South Korea) in the matter of STX Pan Ocean Co Ltd (receivers appointed in South Korea) [2013] FCA 680 has the effect of allowing the arrest of a ship in Australia, despite the operation of the Cross Border Insolvency Act 2008 (Cth) which incorporates the United Nations Model Law on cross border insolvency into Australian law. Partner, Frazer Hunt and Senior Associate, Maurice Lynch discuss the decision.

Australia’s largest group-buying website, Scoopon, will defend itself in the Federal court later this month, with the Australian Competition and Consumer Commission having accused Scoopon of engaging in misleading and deceptive conduct.

Resources Update - Special Edition: APPEA 2013 - 24 May 2013

Welcome to the latest edition of Piper Alderman's Resources Update - APPEA Edition, the publication designed to keep you up to date with legal developments in the energy and resources sector in Australia.

In the May 2013 edition:

Changes to ASX rules for reporting of reserves, resources and exploration results

So you know that lots of people are online, tweeting, blogging and vlogging hoping to go viral. You've been told that your business should launch a social media campaign in order to capture the attention of Generation Z and hipsters who are anti-social socially but uber-social social media-ly. And as you scratch your head when you hear words and phrases including "totes amazeballs", "cray" and "awesomesauce", and you're not quite sure of the correct pronunciation of "meme" you hesitate whether advertising online and having online profiles is for you.

Mining Licenses - impact on mortgagors and mortgagees - 21 Dec 2012

Special Counsel, Jacquie Browning offers a brief insight into the impact of mining licenses upon not only landowners as mortgagors but also upon financiers as mortgagees and offers some suggestions to ensure that all parties are not disadvantaged or adversely affected by such licenses. The relevance of the Personal Property Securities Act is also considered.

Farm Debt Mediation - 14 Nov 2012

On 1 December 2011 the Farm Debt Mediation Act 2011 (VIC) commenced operation. Under the Act, a farm debt mediation scheme is implemented which makes it compulsory for banks and other creditors to offer mediation to farmers before commencing debt recovery proceedings against the farmer on mortgages. Special Counsel, Jacqueline Browning discusses the scheme, which is about to mark its first anniversary of operation.

Wills Watch - 28 Sep 2012

Welcome to the September edition of Piper Alderman's Wills Watch, looking at recent developments in succession law and estate planning issues.

In the September 2012 edition:

International wills - As the Australian States move to accede to the Convention providing a Uniform Law on the Form of an International Will (Washington D.C 1973), the Wills Watch team looks at what this will mean in Australia.

All in the family - Lessons from the Estate of David Loy (Deceased) [2012] SASC 140

Witnessing requirements: When there's a will there's a way - Lessons from the will of Andrew Charles Pearce [2012] QSC 199

Transfers of interests in partnerships can have many unseen pitfalls especially for businesses as complex as hotels, motels, restaurants, wineries and other licensed premises. Expert legal advice can help you avoid problems and Piper Alderman's team can help navigate through each step of the transaction.

Special Counsel, Jacquie Browning considers the application of personal property securities reform to the Agribusiness sector and offers some practical tips on the operation of the Personal Property Securities Act.

Resources Alert - James Hardie High Court Appeals: Implications for Company Secretaries and General Counsel - 01 May 2012

Senior Associate, Simone Selkirk considers the implications of the Shafron v ASIC [2010] HCA 18 High Court decision handed down on 3 May 2012 as it effects Company Secretaries and General Counsel. In particular reviewing the hazards of a blended role of General Counsel and Company Secretary and indivisibility of role capacities when discharging officer duties. This article identifies the key issues of awareness for Company Secretaries and General Counsel in managing their duties as officers and distinguishing their capacities in their dual role.

Trade & Transport News - 01 May 2012

Welcome to the latest edition of Piper Alderman's Trade & Transport News, with up to date news on legal and regulatory issues affecting the sector, as well as the impact of recent case law from around the globe.

In the May 2012 edition:

A timely warning to time charterers - bunkers

The warranties in your marine insurance policy may no longer matter

SOPA - A new weapon in your armoury to force contractors to pay their bills

ASIC has released a new regulatory guide with new disclosure benchmarks and principles for agribusiness managed investment schemes to assist retail investors to make informed investment decisions on these products. Partner, Craig Yeung and Lawyer, Jarrod Wilksch examine the new regulatory guide.

Legal Rx Alert - 01 Jul 2011

Welcome to this special Legal Rx Alert.

Government administration of the Pharmaceutical Benefits Scheme has come under significant public scrutiny, highlighting the lack of transparency in the overall process. Dr Teresa Schafer discusses some of the key issue that this raises for the pharmaceutical sector in Australia

On 10 July 2011, the Federal Government announced the framework for its Carbon Price scheme. Subject to the legislation passing the scheme is proposed to commence on 1 July 2012 with an initial Carbon Price set at A$23 per tonne of carbon dioxide equivalent. Senior Associate, Simone Selkirk and Consultant, Dr Roland M Ryser consider the practical implications of the Carbon Price for the Resources Sector.

Tax Alert - 01 Jun 2011

Update on Senate inquiry into foreign investment in Australian farmland - 17 May 2011

Partner, Simon Venus, looks at the Senate inquiry into the proposed amendments to the Foreign Acquisitions and Takeovers Act which would, if passed, see significant changes to the notification and disclosure requirements for foreign acquisitions of Australian agricultural land.

Foreign investment in Australian farm land: domestic scrutiny is on the horizon - 01 Dec 2010

Partner and head of Piper Alderman's Agribusiness Practice Group, Simon Venus, considers the flow of foreign capital into Australian farm land and agribusinesses and foreshadowed changes to the Foreign Acquisitions and Takeovers Act 1975.

Australian European Community Agreement on trade in wine - 30 Nov 2010

Australian wine producers are set to benefit from improved access to Australia's largest wine export market, Europe, with the Australian Wine and Brandy Corporation Amendment Act 2010 having commenced full operation on 1 September 2010. Corporate Lawyer, Bianca Battistella examines the reforms.

Mining Kryptonite - the tax that is no longer super - 26 Aug 2010

On 2 July 2010, the Australian Government announced that the proposed Resource Super Profits Tax will be replaced by a new resource rent tax arrangement - the Minerals Resource Rent Tax. Cutting through the media hype, Corporate Associate, Aaron Chan, and Lawyer, Paul Henry, discuss what this means and what can be expected to follow.

Corporate Associate Will Fennell considers the High Court's recent decision regarding the application of section 100 of the Commonwealth Constitution to the reduction of NSW bore water licence rights pursuant to the National Water Initiative.

Right to Farm Legislation passes the SA Legislative Council - 17 Feb 2010

Horticulture Code of Conduct update - 04 Feb 2010

The Agribusiness Practice Group at Piper Alderman has been following the progress of proposed amendments to the Horticulture Code of Conduct, a mandatory industry code for the purpose of the Trade Practices Act. Partner, Simon Venus and Lawyer, Bianca Battistella report on the latest developments.

Construction Alert - 01 Dec 2009

Welcome to the latest Construction Alert which looks at the Personal Property Security Act (PPSA), recently passed by the Federal Parliament that will have a significant impact on the construction industry.

Piper Alderman will host a series of presentations for the construction industry in early 2010 in our offices across Australia on the relevance of the new regime. Invitations will be issued in January 2010.

Trade & Transport News - 01 Dec 2008

Welcome to the latest edition of Piper Alderman's Trade & Transport News with up to date news on legal and regulatory issues affecting the sector, as well as the impact of recent case law from around the globe.

Trade & Transport News - 01 Mar 2008

Welcome to the latest edition of Piper Alderman's Trade & Transport News, with up to date news on legal and regulatory issues affecting the sector, as well as the impact of recent case law from around the globe.

Trade & Transport News - 01 Aug 2007

Welcome to the latest edition of Piper Alderman's Trade & Transport News, with up to date news on legal and regulatory issues affecting the sector, as well as the impact of recent case law from around the globe.

Trade & Transport News - 01 Apr 2007

Welcome to the latest edition of Piper Alderman's Trade & Transport News, with up to date news on legal and regulatory issues affecting the sector, as well as the impact of recent case law from around the globe.

Trade & Transport News - 01 Jul 2006

Welcome to the latest edition of Piper Alderman's Trade & Transport News, with up to date news on legal and regulatory issues affecting the sector, as well as the impact of recent case law from around the globe.

Trade & Transport News - 01 Jan 2006

Welcome to the latest edition of Piper Alderman's Trade & Transport News, with up to date news on legal and regulatory issues affecting the sector, as well as the impact of recent case law from around the globe.

In the January 2006 edition:

Court of Appeal approves trial judgement in the "Eternal Wind"

Arrest of bunkers as security for arbitration

Freight forwarders as carriers

State liability of government for detention of vessel pursuant to port state control measures